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SCHUYLER 


THE  LIBERTY  OF  THE 
PRESS  IN  THE  AMERI- 
CAN COLONIES  Before 
the  Revolutionary  War. 

With  Particular  Reference  to  Con- 
ditions in  the  Royal  Colony  of  New 
York. 


BY 


LIYIINGSTON  ROWE  SCHUYLER,  M.A.,  B.D.,  Ph.D. 

Sometime  Scholar  in  Ecclesiastical  History 

Church  University  Board  of  Regents 

Instructor  in  History,  College  of  the  City  of  New  York. 


NEW   YORK 

THOMAS  WHITTAKER 

2   &  3  BIBLE  HOUSE 

1905- 


Copyright,  igo^ 

by 

Livingston  Rowe  Schuyler. 


Accepted  in  partial  fulfillment  of  the 
requirements  for  the  Degree  of  Doctor 
of  Philosophy^  hy  the  Graduate  School 
of  New  York  University,  in  1901).. 


TABLE  OF  CONTENTS 

CHAPTER  I. 
THE  PRESS  IN  ENGLAND  BEFORE  THE  NINETEENTH 

CENTURY. 

Page 

At  first  the  Church  controlled  all  printing — In  England  at  the 
Reformation  the  State  assumed  this  work — The  establish- 
ment of  monoplies  by  patent — The  Star  Chamber  under 
Elizabeth  and  its  work — Under  James  I. — Abolished  by  the 
Long  Parliament — Milton's  ''Areopagitica" — The  Li- 
censing Acts — How  it  Ended — Courts  assume  control — 
The  principle  of  criminal  libel — Function  of  the  jury — 
Fox's  bill  of  1792— The  law  of  libel  to-day 1 


CHAPTER  11. 

THE  PRESS  IN  MASSACHUSETTS. 

Page 

The  first  press,  1639— Attitude  of  the  Government— Samuel 
Green  and  his  press — First  licensers  appointed — General 
Court  acts  in  a  Kempis  case— Sewall's  license— Gov. 
Andros  continues  licensing  system — "Publick  Occur- 
rences"—Relation  of  the  Clergy  to  the  press— Increase 
Mather  vs.  Bartholomew  Green— Case  of  Benjamin  Gray- 
Increase  Mather  vs.  James  Franklin— Trouble  over  the 
Rhode  Island  letter  in  Courant— J.  Franklin  finally  forbid- 
den to  print— The  Courant  and  Gov.  Shute— Case  ot 
Thomas  Fleet  in  1741— His  trouble  with  the  Clergy— Case 
of  the  Fowle  brothers,  1754— The  Worcester  Instructions 
—Isaiah  Thomas  and  his  trouble  in  Nova  Scotia— The 
Scaevola  letter— Case  of  Edes  and  Gill—Position  of  the 
Crown  at  this  time ' 


CHAPTER  III. 

THE  PRESS  IN  PENNSYLVANIA. 

^Ym.  Bradford,  1685— His  troubles— Declares  jurors  are  jud.^es 
of  the  law  as  well  as  of  the  facts— Goes 'to  N.  Y.— Andrew 
Bradford  founds  the  '' Mercury  "—In  trouble  with  Council 
—The  Cassius  Letter— Rev.  Dr.  Smith  and  the  German 
Press—  Wm.  Bradford  the  younger  and  the  Pennsylvania 
Journal— The  Hughes  case— The  Bradford  family  and  the 
liberty  of  the  press " 23 


CHAPTER  IV. 

THE  PRESS  IN  NEW  YORK. 

Gov.  Lovelace  and  printing — Gov.  Fletcher  brings  Wm.  Brad- 
ford to  N.  Y. — Dispute  over  the  Muster  Rolls — Wallace's 
Tribute  to  Bradford— Trial  of  Col.  Nicholas  Bayard — 
Samuel  ]\Iulford  and  his  quarrels  with  the  Governor  and 
Assembly — Outcome — The  Zenger  Trial  and  Its  Im])ort- 
ance — Argument  of  Bradford  successfully  asserted  by 
Hamilton — Cadwallader  Colden  and  his  pamphlet — Gov. 
Clinton  and  the  Remonstrance — The  Address — Case  of 
Hugh  Gaine — The  Parker-Watkins  article — Rev.  Mr.  Wat- 
kins '  explanation — Samuel  Townsend  and  the  "Neutral 
French" — Letter  of  "Freedom" — Colden 's  testimony  to 
the  state  of  public  opinion — The  pamphlet  "On  the  Con- 
duct of  C.  Colden" — Paper  signed  "Son  of  Liberty" — 
John  Lamb — Alexander  McDougall  and  the  Assembly.  ...     34 


CHAPTER  V. 

THE  PRESS  IN  THE  SOUTHERN  COLONIES. 

Peculiar  i^osition  occupied  by  the  press — Sir  William  Berkeley — 
Case  of  John  Buckner— Conditions  in  Va. — In  South  Caro- 
lina— Peter  Timothy  and  the  clergy — Thomas  Powell's 
contests  with  the  Council 68 


Vll 

CHAPTER  VI. 
CONCLUSION. 

1. — Amount  of  control  exercised  by  the  Governor,  as  the  King's 
representative,  varied  in  the  different  colonies. 

II. — Attitude  assumed  by  the  colonies  themselves  through  their 
elected  representatives  was  different. 

III. — There  was  a  gradual  but  real  advance  towards  freedom  of 
discussion  as  far  as  regards  ordinary  matters. 

IV. — And  to  a  slight  extent  as  regards  political  matters  not  af- 
fecting the  interests  of  the  Crown. 

V. — But  almost  none  in  political  matters  affecting  the  Crown. 

VI. — Influence  of  classes  on  the  press,  e.  g.,  the  Clergy. 

VII. — The  class  reached  by  the  press  directly  was  small  in  num- 
bers and  generally  speaking  conservative  in  temper. 

VIII. — On  the  attitude  assumed  by  the  press  towards  authority, 
and  the  part  taken  by  it  in  movements  leading  up  to  the 
Revolution. 

IX. — At  the  close  of  the  period  under  discussion  there  was  no 
liberty  of  the  press  as  we  now  understand  the  term. 

X. — The  press  in  the  State  and  the  Federal  Constitutions 72 

BIBLIOGRAPHY    79 

APPENDICES. 

I.— The  Genealogy  of  the  Bradford  Family 82 

II.— Quotations  from  ''THE  FORUM" 83 

INDEX    84 

VITA    86 


THE  LIBERTY  OF  THE  PRESS 

IN  THE  AMERICAN  COLONIES  BEFORE  THE  REVOLUTIONARY  WAR,  WITH 
PARTICULAR  REFERENCE  TO  CONDITIONS  IN  THE  ROYAL  COLONY 
OF  NEW  YORK. 

CHAPTER  I 

THE   PRESS   IN   ENGLAND  BEFORE  THE   NINETEENTH   CENTURY 

IMMEDIATELY  on  the  introduction  of  printing  the  Church  assumed 
towards  it  an  attitude  at  once  intimate  and  watchful.  Since  all  that 
affected  the  welfare  of  the  mind  and  the  health  of  the  soul  was  of 
importance  to  the  Church,  it  was  not  at  all  surprising  that  the  demand 
was  at  once  made  that  nothing  should  be  put  forth  by  the  press  save  that 
which  had  received  the  sanction — the  "  Imprimatur  " — of  the  Diocesan 
authority,  or  later  of  the  official  delegated  by  the  personal  representative 
of  the  Papacy.  The  rules  that  were  laid  down  for  the  direction  of  the 
printer  were  full  and  explicit,  and  no  resistance  seems  to  have  been  at- 
tempted. At  the  period  of  the  Reformation  in  England,  the  power  of 
supervision  over  all  forms  of  printing  passed  from  the  hands  of  the 
Church  to  the  civil  authority.  This  followed  naturally  from  the  theory 
that  the  King,  as  Head  of  the  Church,  inherited  all  rights  of  oversight  in 
matters  of  opinion  and  morals  formerly  pertaining  to  the  Pope,  and  exer- 
cised in  England  by  the  Bishops  in  his  name.  The  Henrician  and  Eliza- 
bethan Bishops  still  gave  the  "  Imprimatur,"  but  it  was  now  as  represent- 
ing the  King.  The  fact  of  publication  without  authority  was  in  itself  a 
crime  deserving  of  severe  punishment.^ 

A  further  step  in  the  restriction  of  printing  was  the  establishment  (in 
line  with  the  general  tendencies  of  the  time),  of  monopolies  by  patent. 
In  1557  the  Stationers'  Company  was  formed  of  ninety-seven  London 
stationers,  and  to  it  was  committed  the  sole  right  to  print  books  licensed 
by  the  proper  authority.^  As  representing  the  Sovereign,  the  Star  Cham- 
ber exercised  a  supervision  over  the  manner  in  which  the  law  was  carried 
out;  in  1559  it  ordered  that  all  books  were  to  read  by  a  Bishop  or  a  mem- 

1  Majr,  Constitutional  History  II,  p.  103. 

2  Collier,  Essay  on  the  Law  of  Patents,  and    General  History  of  Monopolies. 


2  LIBERTY    OF    THE    PRESS 

ber  of  the  Privy  Council  before  going  to  the  press,  and  in  1586  gave 
permission  for  a  printing  press  to  be  set  up  in  each  University,  the  Hcenser  | 
in  this  case  being  the  Vice  Chancellor.  In  the  same  year  the  Star  Cham-  * 
ber  ordered  that  all  books  were  to  be  read  and  licensed  by  the  Archbishop 
of  Canterbury  or  the  Bishop  of  London,  with  the  exception  of  law  books 
where  were  to  be  read  by  the  Chief  Justice  of  either  Bench  or  the  Lord 
Chief  Baron. 

Proclamations  issued  by  Queen  Elizabeth  from  time  to  time,^ 
indicate  the  difficulty  found  in  enforcing  this  monopoly  and  requirement  of 
licensing,  and  a  proclamation  issued  by  Elizabeth  ^  against  "  bringing 
into  the  realm  unlawful  books  "  indicates  that  the  statute  of  Henry  VIII  ^ 
repealing  the  permission  given  in  the  reign  of  Richard  III  to  import 
books  from  abroad  ^  was  being  systematically  disregarded.  Attorney- 
general  Popham  gives  witness  to  the  same  effect  when  in  his  speech  before 
the  Star  Chamber  in  the  presecution  of  Sir  R.  Knightley  and  others  he 
says,  "  Her  Majesty  Queen  Elizabeth,  in  her  great  wisdom,  hath  issued 
proclamations  that  no  pamphlets  or  treatises  should  be  put  in  print  but 
such  as  should  first  be  seen  and  allowed;  and  further,  lest  that  were  not 
sufficient,  she  ordained  that  no  printing  should  be  used  anywhere  but  in 
London,  Oxford,  or  Cambridge.  Notwithstanding  all  this  served  not, 
but  they  would  print  in  corners  and  spread  abroad  things  unprinted: 
wherefore  Her  Majesty  set  forth  a  proclamation  in  anno  25  that  all 
Brownist  books,  and  such  other  seditious  books  should  be  suppressed 
and  burnt."  ' 

The  Star  Chamber  continued  to  exercise  control  over  printing  during 
the  reign  of  James  I,  but  with  increasing  difficulty,  not  lessened  by  the 
arbitrary  and  cruel  ways  in  which  it  acted  towards  those  whom  it  believed 
to  be  breaking  its  rules  and  regulations.  The  flood  of  books  printed 
abroad  continued  into  the  reign  of  Charles  I,  and  in  1637  we  find  a  Star 
Chamber  decree,  "  for  reducing  the  number  of  master-prmters,  and  pun- 
ishing all  others  that  should  follow  the  trade,  and  for  prohibiting  as  well 
the  impression  of  all  new  books  without  license,  and  of  such  as  have  been 
licensed  formerly  without  a  new  one,  as  the  importation  of  all  books  in 
the  English  tongue,  printed  abroad,  and  of  all  foreign  books  whatever, 

3  12  Eliz.     15  Eliz.     i8  Eliz.     2i  Eliz.     25  Eliz.     26  Eliz.     31  Eliz  and  43  Eliz. 

4  II  Eliz. 

5  25  H.  VIII,  c.  15,  Sect.  I. 

6  I  R.  Ill,  c.  9.  Sect.  12. 

7  State  Trials,  Vol.  I,  p.  1263. 


LIBERTY    OF    THE    PRESS  3 

till  a  true  catalogue  has  been  presented  to  the  Archbishop  of  Canterbury, 
and  the  Bishop  of  London,  and  the  books  themselves  had  been  received 
by  their  chaplains,  or  other  learned  men  of  their  appointment,  together 
with  the  masters  and  wardens  of  the  Stationers'  Company."  A  printer 
disobeying  this  order  was  to  be  fined,  disabled  from  printing  thereafter 
and  the  printing  press  forfeited. 

The  quarrel  between  Charles  I  and  the  Long  Parliament  resulted  in 
the  abolition  of  the  Star  Chamber,  but  the  only  result,  as  far  as  the  press 
was  concerned,  was  a  change  in  masters,  the  Crown  giving  place  to 
Parliament.  From  time  to  time  orders  were  issued  by  the  Parliament  ^ 
similar  in  tone  to  those  of  the  Star  Chamber.  One  dated  June  14,  1643, 
directs  that  "  no  book,  pamphlet,  paper,  nor  part  of  any  such  book, 
pamphlet,  or  paper,  shall  from  henceforth  be  printed,  bound,  stitched,  or 
put  out  to  sale,  by  any  person  or  persons  whatsoever  unless  the  same  be 
first  approved  and  licensed  under  the  hands  of  such  persons  as  both,  or 
either,  of  the  Houses,  shall  appoint  for  licensing  of  the  same,  and  be 
entered  in  the  Register  Book  of  the  Company  of  Stationers,  according  to 
ancient  custom,  and  the  printer  thereof  shall  put  his  name  thereto."  It 
was  in  reply  to  this  action  by  Parliament  that  Milton  produced  in  1644  his 
"  Areopagitica,"  that  matchless  plea  for  freedom  of  speech  and  the 
liberty  of  the  press.  "  We  should  be  wary  therefore,"  he  writes,  "  what 
persecution  we  raise  against  the  living  labours  of  public  men,  how  we  spill 
that  seasoned  life  of  man,  preserved  and  stored  up  in  books;  since  we  see 
a  kind  of  homicide  may  be  thus  committed,  sometimes  a  martyrdom ;  and 
if  it  extend  to  the  whole  impression,  a  kind  of  massacre,  whereof  the 
execution  ends  not  in  the  slaying  of  an  elemental  life,  but  strikes  at  the 
ethereal  and  fifth  essence,  the  breath  of  reason  itself;  slays  an  immortality 
rather  than  a  life."  ^ 

But  these  stirring  words  fell  on  ears  dulled  by  the  clamor  of  con- 
tending battalions.  It  is  true  that  from  time  to  time  a  report  of  proceed- 
ings in  Parliament  appeared  under  the  title  of  "  Diurnal  Occurrences  in 
Parliament,"  but  in  general  Parliament  was  ever  ready  to  crush  at  its  first 
appearance  any  spirit  considered  by  the  members  to  be  dangerous  to  con- 
stituted authority.  On  Sept.  30,  1647,  Parliament,  at  the  instigation  of 
Fairfax,  passed  an  ordinance,  "  for  the  better  regulation  of  printing," 
by  which  the  restrictions  were  increased  and  a  licenser  appointed  to  whom 
before  printing,  all  manuscripts  had  to  be  presented  for  approbation. 

8  Mar.  9,  1643;  June  14,  1643;  Sept.  21,  1647. 

9  Areopagitica,  II,  55. 


4  LIBERTY    OF    THE    PRESS 

With  the  Restoration  of  Charles  II  the  control  of  the  press  was 
continued  by  means  of  the  Licensing  Act  of  1662,  passed  several  times 
for  periods  of  two  years,  finally  expiring  in  1679.^"  This  was  essentially 
a  republication  of  the  Star  Chamber  order  of  1637,  but  since  the  Star 
Chamber  no  longer  existed  the  scene  was  changed  from  that  Court  to  the 
Old  Bailey.  In  1679,  at  the  trial  of  Henry  Carr/^  indicted  for  some 
passages  in  a  weekly  paper,  the  Lord  Chief  Justice  Scroggs  declared  it 
criminal  at  common  law  to  "  write  on  the  subject  of  government,  whether 
in  terms  of  praise  or  censure,  it  is  not  material;  for  no  man  has  a  right 
to  say  anything  of  government."  In  1685,  on  the  accession  of  James  II, 
the  Licensing  Act  was  passed  for  a  period  of  seven  years,  and  in  1692, 
(during  the  reign  of  William  and  Mary),  it  was  renewed  for  one  year 
and  the  session  of  the  following  Parliament.  In  1695  the  House  of 
Commons  refused  to  again  pass  It,  and  in  this  way  the  Act  expired,  never 
to  be  renewed,  and  the  press  was  placed  on  a  footing  of  equality  before 
the  law  with  all  other  trades  and  occupations.  And  yet,  as  has  been 
well  pointed  out  by  Macaulay,^^  the  reasons  given  by  the  Parliament  for 
their  action  did  not  In  any  way  touch  on  the  question  of  the  rightfulness 
of  a  free  press,  but  rather  dealt  with  certain  complaints  In  regard  to  the 
provisions  of  the  law  and  the  mode  of  application.  "  This  paper,"  he 
writes,  "  completely  vindicates  the  resolution  to  which  the  Commons  had 
come.  But  it  proves  at  the  same  time  that  they  knew  not  what  they  were 
doing,  what  a  power  they  were  calling  into  existence.  They  pointed  out 
concisely,  clearly,  forcibly,  and  sometimes  with  a  grave  irony  which  is  not 
unbecoming,  the  absurdities  and  iniquities  of  the  statute  which  was  about 
to  expire.  But  all  their  objections  will  be  found  to  relate  to  matters  of 
detail.  On  the  great  question  of  principle,  on  the  question  whether  the 
liberty  of  unlicensed  printing  be,  on  the  whole,  a  blessing  or  a  curse  to 
society,  not  a  word  Is  said.  The  Licensing  Act  is  condemned,  not  as  a 
thing  essentially  evil,  but  on  account  of  the  petty  grievances,  the  exactions, 
the  jobs,  the  commercial  restrictions,  the  domiciliary  visits,  which  were 
incidental  to  it.  It  Is  pronounced  mischievous  because  it  enables  the 
Company  of  Stationers  to  extort  money  from  publishers,  because  it 
empowers  agents  of  the  government  to  search  houses  under  the  authority 
of  general  warrants,  because  it  confines  the  foreign  book  trade  to  the 
port  of  London,  because  It  detains  packages  of  books  at  the  Custom 
House  till  the  pages  are  mildewed.     The  Commons  complain  that  the 

10  13  and  14  Car.  II,  c.  33;  16  Car.  II,  c.  8 ;  i6  and  17  Car.  II,  c.  7 ;  17  Car.  II,  c.  4. 

11  Carr's  Case,  State  Trials  VII,  929. 

12  Macaulay,  Hist.  Eng.  Chap.  xxi. 


ll 


LIBERTY    OF    THE    PRESS  5 

amount  of  the  fee  which  the  licensers  may  demand  is  not  fixed.  They 
complain  that  it  is  made  penal  in  an  officer  of  the  Customs  to  open  a 
box  of  books  from  abroad,  except  in  the  presence  of  one  of  the  censors 
of  the  press.  How,  it  is  very  sensibly  asked,  is  the  officer  to  know  that 
there  are  books  in  the  box  until  he  has  opened  it?  "  Such  were  the  argu- 
ments which  did  what  Milton's  "  Areopagitica  "  had  failed  to  do.  But 
what  we  mean  to-day  by  the  term,  the  liberty  of  the  press,  is  much  more 
than  the  mere  right  to  print  without  a  previous  application  to  a  censor. 
The  position  which  the  press  holds  in  this  generation  is  the  result  of  a 
slow  but  steady  growth.  After  the  refusal  by  Parliament  to  renew 
the  Licensing  Act  the  courts  still  did  their  best  to  prevent  the  reaping  of 
any  benefit  from  this.  Newspaper  reporting,  and  especially  the  report- 
ing of  Parliamentary  debates  was  frowned  on  by  Bench  and  Parliament 
alike.  In  1722  the  House  of  Commons  passed  the  resolution  "That 
no  printer  or  publisher  of  any  printed  newspaper  do  presume  to  insert  in 
any  such  papers  any  debates  or  other  proceedings  of  this  house  or  any 
committee  thereof"  and  when  Edward  Cave  in  1731  began  to  publish 
in  his  "  Gentleman's  Magazine  "  a  report  of  the  debates  he  had  to  resort 
to  the  fiction  of  a  "  Senate  of  Great  Lilliput  "  and  even  then  lived  in 
continual  fear  of  prosecution. 

As  time  passed  Parliamentary  reporting  came  to  be  tactily  recog- 
nized, but  the  law  of  libel  still  retained  all  its  terrors.  Bentham  told  the 
truth  when  he  said  "  Anything  which  any  man  for  any  reason,  chooses 
to  be  offended  with  is  libel."  Lord  Mansfield  in  the  case  of  Henry 
Sampson  Woodfall,  prosecuted  for  publishing  a  seditious  libel,  enun- 
ciated the  theory  that  the  work  of  the  jury  began  and  ended  with  deciding 
the  fact  as  to  whether  the  accused  was  or  was  not  responsible  for  the 
publication  of  the  matter  complained  of,  the  crown,  through  the  court,  to 
decide  whether  the  matter  was  libellous.  For  twenty  years  the  question 
was  fought  over,  and  at  last  in  1791,  Fox  having  changed  his  views  in 
the  matter,  introduced  his  famous  bill  to  amend  the  law  of  libel,  and  in 
1792  the  bill  became  law.  The  importance  of  this  act  can  hardly  be 
overestimated.  After  stating  that  "  doubts  have  risen  whether  on  the 
trial  of  an  indictment  or  information  for  the  making  and  publishing  any 
libel,  where  an  issue  or  issues  are  joined  between  the  king  and  the  defend- 
ant or  defendants,  on  the  plea  of  not  guilty  pleaded  it  be  competent  to  the 
jury  empanelled  to  try  the  same  to  give  their  verdict  upon  the  whole 
matter  in  issue."  It  goes  on  to  enact  that  "  the  jury  may  give  a  general 
verdict  of  guilty  or  not  guilty  upon  the  whole  matter  in  Issue,  and  shall 


6  LIBERTY    OF   THE    PRESS 

not  be  required  or  directed  by  the  court  or  judge  to  find  the  defendant 
guilty  merely  in  the  proof  of  the  publication  by  such  defendant  of  the 
paper  charged  to  be  a  libel,  and  of  the  sense  ascribed  to  it  in  the  indict- 
ment or  information."  In  the  same  spirit  Judge  Fitzgerald  told  a 
jury  '^  "  You  are  the  sole  judges  of  the  guilt  or  innocence  of  the  defend- 
ant. The  judges  are  here  to  give  any  help  they  can ;  but  the  jury  are  the 
judges  of  law  and  fact,  and  on  them  rests  the  whole  responsibility." 

Thus  the  idea  of  legal  restrictions  on  the  press  passes  away,  and  the 
law  of  libel  becomes  a  law  of  the  press  in  any  case  where  defamation  or 
false  report  is  charged,  and  to  a  jury  is  committed  the  task  of  deciding 
whether  the  statement  made  was  justified  and  proper.  As  Prof.  Dicey 
aptly  puts  it,^^  "  freedom  of  discussion  is,  then,  in  England,  little  else 
than  the  right  to  write  or  say  anything  which  a  jury,  consisting  of  twelve 
shopkeepers,  think  it  expedient  should  be  said  or  written.  .  .  .  Whether 
in  any  particular  case  a  given  individual  is  to  be  convicted  of  libel  depends 
wholly  on  their  judgment,  and  they  have  to  determine  the  questions  of 
truth,  fairness,  intention,  and  the  like,  which  affect  the  legal  character  of 
a  published  statement." 

But  this  point  of  view,  which  is  the  position  in  England,  and  to  a 
large  extent  in  our  own  land,  has  not  been  reached  without  a  struggle, 
and  it  is  to  that  struggle,  so  far  as  it  was  carried  on  in  the  American 
Colonies,  that  we  must  now  turn  out  attention. 

13  Rex  V.  Sullivan,  11  Cox.  C.  C.  52. 

!•*  A.  V.  Dicey,  The  Law  of  the  Constitution,  p.  242. 


CHAPTER   II 

THE  PRESS  IN  MASSACHUSETTS 

IT  was  in  this  colony  of  Massachusetts  that  the  art  of  printing  was 
first  exercised  on  American  soil  by  an  Enghsh-speaklng  people/  the 
Reverend  Joseph  Glover,  a  clergyman  of  Sutton  in  the  county  of 
Surrey,  England,-  having,  about  the  year  1638,  collected  the  money 
necessary  for  the  purchasing  of  type  and  press.^  In  1639  the  first  book, 
"  The  Freeman's  Oath  "  appeared,  and  towards  the  work  the  attitude  of 
the  colonial  government  appears  to  have  been  favorable  since  we  learn 
from  the  MS.  records  of  the  colony  that  "  Att  a  general  Court  held 
at  Boston,  on  the  eighth  day  of  the  eighth  moneth  (October)  1641, 
Steeven  Daye  being  the  first  that  set  upon  printing.  Is  graunted  three  hun- 
dred acres  of  land,  where  it  may  be  convenient  without  prejudice  to  any 
town." 

A  second  printer  of  the  period  was  Samuel  Green  who,  some  seven- 
teen years  later  petitioned  the  General  Court  for  a  grant  of  land.  In 
regard  to  which  we  read,  "  At  the  second  sessions  of  the  General  Court 
held  at  Boston  the  19th  of  October,  1658,  in  answer  to  the  Petition  of 
Samuel  Green;  of  Cambridge,  printer.  The  Courte  judgeth  It  meete  for 
his  Encouragement  to  graunt  him  three  hundred  acres  of  Land  where  It 
Is  to  be  found."  Apparently  it  was  deemed  neither  necessary  nor  expedi- 
ent at  this  time  to  lay  any  restrictions  upon  the  printer  and  his  press,  but 
a  change  of  sentiment  appears  in  1662,  when,^  after  the  publication  of 
some  books  treating  religious  matters  In  a  way  thought  to  be  dangerous, 
the  General  Court  appointed  Capt.  Daniel  Gookins,  one  of  the  Assist- 
ants, and  the  Rev.  Jonathan  Mitchell,  the  minister  of  Cambridge,  as  licen- 
sers of  the  press,  all  printing  except  as  allowed  by  them  being  prohibited. 
A  reaction  Is  evidenced  a  few  months  later  when  on  May  27,  1663,  the 
General  Court  "  Ordered  that  the  printing  press  be  at  liberty  as  formerly, 

1  John  Winthrop,  Hist,  of  New  England,  Vol.  I,  p.  348. 

2  Lechford's  MS.  Note-book,  p.  119. 

3  Major  Edward  Johnson,  Wonder-Working  Providence  of  Sion's  Saviour  in   New  Eng- 
land, London  Edition,  p.  129. 

4  Thomas  Hutchinson,  Hist,  of  Mass.  I,  p.  236. 

[Copyright,  1905,  by   L.    R.   Schuyler.] 

7 


8  LIBERTY    OF    THE    PRESS 

till  this  Court  shall  take   further  order,   and  the  late  order  is  hereby 
repealed."  ^ 

This  liberty  of  action  was  however  only  temporary  and  we  next  find 
"  at  a  General  Court  called  by  order  of  the  Governor,  Deputy  Governor, 
and  other  Magistrates,  held  at  Boston,  19th  of  October,  1664.  For  the 
preventing  of  irregularyties  and  abuse  to  the  authority  of  this  country, 
by  the  Printing  Press,  it  is  ordered  by  this  Court  and  the  authority  thereof, 
that  theer  shall  no  Printing  Presse  be  allowed  in  any  Towne  within  this 
jurisdiction,  but  in  Cambridge,  nor  shall  any  person  or  persons  presume 
to  print  any  Copie  but  by  the  allowance  first  had  and  obtayned  under  the 
hands  of  such  as  this  Court  shall  from  tjme  to  tjme  Impower, — The 
President  of  the  Colledge,  Mr.  John  Shearman,  Mr.  Jonathan  Mitchell 
and  Mr.  Thomas  Shepheard,  or  any  two  of  them  to  survey  such  Copie 
or  Coppies  and  to  prohibit  or  allow  the  same  according  to  this  order, — 
and  in  case  of  non-observance  of  this  order,  to  forfeit  the  Presse  to  the 
Country  and  be  disabled  from  Vsing  any  such  profession  within  this  juris- 
diction for  the  time  to  come.  Provided  this  order  shall  not  extend  to  the 
obstruction  of  any  Coppies  which  this  Court  shall  Judge  meete  to  order 
to  be  published  in  Print." 

Not  long  after  ( 1667)  the  General  Court  interfered  in  a  case  where 
the  licensers  had  given  permission  to  print — "  This  Court  being  informed 
that  there  is  now  in  the  presse  reprinting,  a  book  that  Imitates  of  Christ, 
or  to  that  purpose,  written  by  Thomas  Kempis,  a  popish  minister, 
where  in  is  contayned  some  things  that  are  lesse  safe  to  be  infused 
amongst  the  people  of  this  place.  Doe  comend  to  the  licensers  of  the 
Presse  the  more  full  revisale  thereof,  and  that  in  the  mean  time  there  be 
no  further  progresse  in  that  w^ork."'''  On  this  Thomas  Hutchinson 
remarks,"  "  In  a  constitution  less  popular  this  would  have  been  thought 
too  great  an  abridgement  of  the  subject's  liberty."  In  1674  it  was 
ordered  "  Whereas  there  is  now  granted  that  there  may  be  a  Printing 
Presse  elsewhere  than  at  Cambridge,  for  the  better  regulation  of  the 
Presse  it  is  ordered  and  enacted  that  the  Revd.  Mr.  Thomas  Thatcher 
and  Revd.  Increase  Mather  of  Boston,  be  added  unto  the  former  Licen- 
sers, and  they  are  hereby  empowered  to  act  accordingly."  At  the  death 
of  John  Foster,  the  setting  up  of  whose  press  in  Boston  had  been  the 
occasion  of  the  order  just  quoted,  it  was  thought  desirable  that  printing 

f'  MS.    Records    of   the    Colony,    quoted  by   Thomas  Hutchinson,  I,  958. 
«  MS.  Records  of  the  Colony. 
7  Hist,  of  Mass.  I,  p.  236. 


LIBERTY    OF    THE    PRESS  9 

should  be  continued  in  Boston,  and  Samuel  Sewall,  although  not  a  printer 
by  profession,  was  prevailed  upon  to  take  up  the  work.  It  may  be 
interesting  to  read  the  license  which  he  thus  received,  ^  "  Samuel  Sewall, 
at  the  Instance  of  some  Friends  with  respect  to  the  accommodation  of  the 
Publick,  being  prevailed  with  to  undertake  the  Management  of  the 
Printing  Presse  in  Boston,  late  under  the  command  of  Mr.  John  Foster, 
deceased,  liberty  is  accordingly  granted  to  him  for  the  same  by  this  court, 
and  none  may  presume  to  set  up  any  other  Presse  without  the  like  liberty 
first  granted."  Speaking  of  Gov.  Andros  and  his  rule  in  Massachusetts, 
Thomas  Hutchinson  ^  remarks,  "  One  of  the  first  acts  of  power,  after  the 
change  of  government,  was  the  restraint  of  the  Press. ^"  Randolph  was 
the  licenser.  There  was  not  so  much  room  to  complain  of  this  proceed- 
ing as  if  the  press  had  been  at  liberty  before.  It  only  changed  its  keeper, 
having  been  long  under  restraint  during  the  former  administration." 

There  is  in  the  Colonial  State  Paper  Ofiice  in  London  a  copy,  the  only 
one  now  existing  of  the  first  issue  of  the  first  newspaper  to  appear  in  the 
English  colonies.  It  was  published  by  Benjamin  Harris  at  the  London 
Coffee,  Boston,  and  printed  by  Richard  Pierce,  bearing  the  date  of  Sept. 
25,  1690.  Without  a  name  unless  the  words  "  Publick  Occurrences  "  on 
the  first  page  was  its  name,  with  printing  on  but  three  sides  of  a  folded 
sheet  and  confining  itself  to  a  short  summary  of  Indian  and  foreign 
affairs,  the  paper  might  seem  to  be  harmless,  but  it  attracted  ofl^cial 
attention  at  once.  It  had  mentioned  the  conduct  of  the  war  with  the 
Indians  and  had  made  some  slight  remarks  on  local  affairs.  For  this 
reason  the  first  issue  was  also  its  last.  Buckingham  ^^  says  of  it,  "  Imme- 
diately upon  its  publication  it  was  noticed  by  the  legislative  authorities. 
Four  days  afterwards,  they  spoke  of  it  as  a  pamphlet, — stated  that  it 
came  out  contrary  to  law,  and  contained  '  reflections  of  a  very  high 
nature.'  They  strictly  forbade  '  anything  in  print  without  license  first 
obtained  from  those  appointed  by  the  government."  Perhaps  it  was  to 
give  him  something  in  return  for  the  suppression  of  his  paper  that  in 
1692  Harris  was  appointed  "  Printer  to  His  Excellency  the  Governor 
and  Council,"  a  position  which  he  held  for  two  years  after  which  time  he 
returned  to  England  and  published  a  paper  there.  But  although  his 
attempt  in  America  was  a  failure  yet  it  was  at  least  the  beginning,  and 

8  Records  of  the  Colony  for  1681. 

9  History  of  Massachusetts,  i,  318. 

10  Edward. 

11  Reminiscenses,  I,  p.  i. 


lO  LIBERTY    OF    THE    PRESS 

the  treatment  he  received  was  the  same  meted  out  to  each  of  his  succes- 
sors who  dared  to  be  original. 

During  the  last  quarter  of  the  seventeenth  century  the  influence  over 
the  publications  of  the  press  exercised  by  the  clergy  naturally  continued 
to  be  very  great.  And  in  cases  where  doctrinal  matters  were  in  dispute 
it  appears  to  have  been  very  difficult  to  find  a  publisher.  In  a  pamphlet 
with  the  title  "  Gospel  Order  Revived,  Being  an  Answer  to  a  Book  lately 
set  forth  by  the  Reverend  Mr.  Increase  Mather,  President  of  Harvard 
College,  etc.  entitled.  The  Order  of  the  Gospel  etc.  Dedicated  to  the 
Churches  of  Christ  in  New  England,"  and  bearing  the  imprint  "  Printed 
in  the  Year  1700,"  but  without  either  name  of  publisher  or  place  of 
issue,  we  find  the  statement  made,  *'  The  Reader  is  desired  to  take  notice 
that  the  Press  in  Boston  is  so  much  under  the  aw  of  the  Reverend  Author 
whom  we  answer,  and  his  Friends,  that  we  could  not  obtain  of  the 
Printer  there  to  print  the  following  sheets,  which  is  the  only  true  reason 
why  we  have  sent  the  Copy  so  far  for  Its  Impression."  After  the  appear- 
ance of  this  pamphlet  a  rather  fierce  war  of  statements  and  counterstate- 
ments  ensued,  In  the  course  of  which  Bartholomew  Green,  the  Boston 
publisher  who  had  been  asked  to  publish  the  "  Answer  "  and  had  declined, 
in  the  course  of  a  paper  Issued  in  justification  of  his  refusal  said  "  The 
Sum  is,  Whenas  no  Name  appeared  on  the  Title  Page;  nor  so  much  as  the 
name  of  any  Author  was  told  me,  when  I  requested  it, — I  had  no  oppor- 
tunity to  read  It  over  myself, — the  Piece  being  also  Controversial;  I  con- 
cluded that  it  would  be  altogether  Inconvenient  for  me  to  print  it  upon 
my  own  head  without  asking  advice,  for  which  I  referr'd  myself  to  the 
Honourable  William  Stoughton,  Esq;  our  Lieutenant  Governour — Nor 
was  it  a  new  thing  to  Show  Copies  to  the  Lieutenant  Governour  In  order 
to  their  being  printed.  Mr.  Seward's  '  Phaenomena  Apocalyptica  '  was 
taken  oft  the  Press  and  carried  to  the  Lieutenant  Governor  for  his  Allow- 
ance. By  the  same  l^oken,  one  Half  Sheet  being  wrought  off  too  soon; 
the  Author  was  at  the  Charge  to  Print  It  over  again,  to  gratify  His 
Honour  In  some  Alterations  that  could  not  otherwise  be  made.'  Besides 
other  Instances  that  might  be  given."  ^-  Here,  Green  In  his  desire  to 
show  his  position,  ends  the  explanations  (some  lines  after  the  portion 
quoted),  with  the  statement  that  he  is  a  poor  man  and  cannot  afford  to 
antagonize  the  powers  that  be, — making  It  very  clear  that  the  liberty  of 
printing,  as  we  understand  the  term  to-day,  was  a  thing  undreamed  of 
in  his  time  and  place. 

>2  Thomas,  Vol.  I,  App.  I. 


K' 


LIBERTY    OF    THE    PRESS  II 

From  1700  to  1720  it  would  seem  from  the  absence  of  cases  of  any 
importance  that  the  press  in  Massachusetts,  if  not  free,  was  not  led  by 
party  spirit  to  enter  on  courses  which  would  cause  the  government  to 
interfere.  But  in  172 1  in  the  record  of  the  Council  it  is  stated  that 
Benjamin  Gray  was  brought  before  that  body  charged  with  the  offense 
of  having  published  a  pamphlet  entitled  "  A  Letter  to  a  Clergyman  in 
the  Massachusetts  Bay  "  and  said  to  contain  "  expressions  which  greatly 
reflect  on  His  Majesty's  Government  and  people  of  this  Province,  and 
tend  to  disturb  the  Public  Peace."  For  this  Gray  was  ordered  to  be 
prosecuted  by  the  Attorney-General.  The  result  of  the  matter  is  not 
known.  Again,  in  1722  James  Franklin  the  brother  of  Benjamin  Frank- 
lin, and  publisher  of  the  New  England  Courant, — the  third  Boston 
newspaper, — began  a  series  of  articles  in  which  the  government,  and  even 
the  clergy  and  many  prevailing  views  of  the  day  were  warmly  attacked. 
"  Whatever  we  may  think  of  Franklin's  course  he  certainly  initiated  a 
new  era  in  journalism.  While  he  suffered  in  purse  and  person,  the  press 
gained  in  freedom  and  independence.  The  News  Letter  and  the  Gazette 
in  Boston,  and  the  Mercury  in  Philadelphia,  the  other  papers  then  pub- 
lished, being  in  the  hands  of  office  holders,  were  circumspect  in  the  utter- 
ance of  their  views.  But  Franklin  was  made  of  different  stuff.  His 
paper  was  the  first  rebel  organ  in  America.  With  the  leaven  of  '76  in 
his  soul,  he  was  bold  and  outspoken,  and  commented  on  the  abuses  of  the 
times  as  he  saw  them."  ^^ 

In  reply  Dr.  Increase  Mather  issued  an  open  letter  to  the  public,  pub- 
lished in  the  Boston  Gazette  of  Jan.  29th,  1722,  in  which,  among  other 
things,  he  says,  "  I  can  well  remember  when  the  Civil  Government  would 
have  taken  an  effective  Course  to  suppress  such  a  Cursed  Libel  which  if  it 
be  not  done  I  am  afraid  some  Awful  Judgement  will  come  upon  this 
Land,  and  that  the  wrath  of  God  will  arise  and  there  will  be  no  remedy." 

About  the  same  time  Franklin  had  ventured  in  the  Courant  of  June 
II,  1722,  to  criticise  the  government  of  Massachusetts  for  its  tardiness 
in  dealing  with  piracy  off  its  coasts  and  had  compared  its  actions  unfavor- 
ably with  those  of  Rhode  Island.  The  criticism  would  not  seem  to  us  to 
be  of  a  very  decided  character,  it  being  in  the  form  of  a  supposed  letter 
from  Rhode  Island,  concluding  with,  "  We  are  advised  from  Boston  that 
the  Government  of  the  Massachusetts  are  fitting  out  a  ship  to  go  after 
the  pirates,  to  be  commanded  by  Captain  Peter  Papillon,  and  'tis  thought 

13  Hudson,  History  of  Journalism,  p.  66. 


12  LIBERTY    OF    THE    PRESS 

he  will  sail  sometime  this  month,  wind  and  weather  permitting."  This 
veiled  criticism  the  Council  took  umbrage  at,  and  at  the  meeting  of  the 
Council  the  next  day,  we  find  the  following  action. ^^  "  Ordered,  That 
the  publisher  of  said  paper  be  forthwith  sent  for  to  answer  for  the  same, 
and  accordingly  James  Franklyn,  of  Boston,  printer,  was  sent  for, 
examined,  and  owned  that  he  had  published  the  said  paper."  The  Coun- 
cil then  resolved  that  the  paragraph  from  the  letter  quoted  above  "  Was 
a  high  affront  to  this  government  "  and  Franklin  was  arrested  and  put  in 
prison.  The  records  of  the  next  meeting  of  the  Council  again  refer  to 
the  matter  :^^  "  In  Council,  20  June  1722.  A  petition  of  James  Franklyn, 
printer,  humbly  showing  that  he  is  truly  sensible  and  heartily  sorry  for 
the  offense  he  has  given  to  this  Court  in  the  late  Courant,  relating  to  the 
fitting  out  of  a  ship  by  the  government,  and  truly  acknowledges  his 
•inadvertency  and  folly  therein,  in  affronting  the  government,  as  also  his 
indiscretion  and  indecency  when  before  this  Court,  for  all  of  which  he 
intreats  the  Court's  forgiveness,  and  praying  a  discharge  from  the  stone 
prison  where  he  is  confined  by  order  of  the  Court,  and  that  he  may  have 
the  liberty  of  the  yard,  he  being  much  indisposed  and  suffering  in  his 
health  by  the  said  confinement;  a  certificate  of  Dr.  Zabdiel  Boylston 
being  offered  with  the  said  petition."  "  In  the  House  of  Representatives 
read,  and  Voted,  that  James  Franklin,  now  a  prisoner  in  the  stone  gaol, 
may  have  the  liberty  of  the  prison  house  and  yard,  upon  his  giving 
security  for  his  faithful  abiding  there. 

"  In  Council,  read  and  concurred;  consented  to.         Sam'l  Shute.'* 

Ultimately  the  Council,  on  July  5th,  1722  passed  the  following 
resolution:  "Whereas  in  the  Paper  called  the  New  England  Courant, 
printed  weekly  by  James  Franklin,  many  passages  have  been  published 
boldly  reflecting  on  His  Majesty's  Government  and  on  the  Administration 
of  it  in  this  Province,  the  Nlinistry,  Churches  and  Colleges;  and  it  very 
often  contains  paragraphs  that  tend  to  fill  the  Readers'  minds  with  vanity 
to  the  dishonor  of  God  and  disservice  of  Good  Men.  Resolved,  that  no 
such  Weekly  Paper  be  hereafter  printed  without  the  same  be  first  perused 
and  allowed  by  the  Secretary  as  has  been  usual.  And  that  the  said 
Franklin  give  Security  before  the  Justices  of  the  Superior  Court  in  the 
Sum  of  £100  to  be  of  the  good  Behaviour  to  the  end  of  next  fall  Sessions 
of  this  Court."  Sent  down  for  concurrence."  "  Read  and  Non- 
concurred." 

^■*  MS.  Records  of  General  Court. 
'5  MS.  Records  of  General  Court. 


LIBERTY    OF    THE    PRESS  I3 

Although  this  attempt  at  the  imposition  of  a  fine  did  not  succeed,  yet 
Franklin  was  released  only  after  an  imprisonment  of  four  weeks. 

It  does  not  appear  that  these  proceedings  had  any  effect  in  checking 
the  freedom  with  which  Franklin  and  his  friends  chose  to  comment  on 
public  men  and  measures.  The  paper  of  July  30th,  just  after  the 
Imprisonment  of  James  Franklin,  is  occupied  almost  entirely  with  a 
chapter  of  Magna  Charta,  and  the  comment  of  a  correspondent,  intended 
to  show  the  illegality  of  the  proceedings  of  the  government.  Almost 
every  paper,  for  several  weeks,  contained  remarks  that  irritated, — and 
probably  were  intended  to  irritate, — those  in  authority,  by  raising  a  laugh 
at  their  expense. 

At  the  beginning  of  January,  1723,  Governor  Shute  sailed  for  Eng- 
land and  after  announcing  this  fact  on  Jan.  14,  1723,  the  Courant  added 
a  letter  in  which  the  writer  said  that  "  it  would  seem  that  any  Governor, 
departing  from  a  government  with  so  much  privacy  and  displeasure,  can- 
not reasonably  be  supposed  to  promote  the  interests  of  that  government 
when  he  arrives  at  the  British  Court."  For  that  reason  the  writer  pro- 
poses that  "  two  persons,  born  among  us,  of  tried  abilites  and  address, 
be,  as  soon  as  possible,  sent  to  the  Court  of  Great  Britain  there  to  vindi- 
cate the  proceedings  of  the  Honorable  House  of  Representatives,  from 
time  to  time,  since  the  misunderstandings  that  have  arisen  between  the 
Honorable  House  and  Governor  Shute."  The  communication  ends 
with — "  Quere.  Whether,  (pursuant  to  the  charter,)  the  ministers  of 
this  province  ought  now  to  pray  for  Samuel  Shute,  Esq.  as  our  immediate 
governor,  and  at  the  same  time,  pray  for  the  Lieutenant-Governor  as 
commander-in-chief?  Or,  whether  their  praying  for  his  success  in  his 
voyage,  if  he  designs  to  hurt  the  province,  (as  some  suppose,)  be  not  in 
effect  to  pray  for  our  destruction?  " 

On  the  same  day  there  is  the  following  record  of  proceedings  in  the 
General  Court: — "  In  Council,  Jan.  14,  1722-3 — Whereas  the  paper, 
called  the  New  England  Courant,  of  this  day's  date,  contains  many  pas- 
sages, in  which  the  Holy  Scriptures  are  perverted,  and  the  Civil  Govern- 
ment, Ministers,  and  People  of  this  Province  highly  reflected  on, 
Ordered,  that  Wm.  Tailer,  Saml.  Sewall,  and  Penn  Townsend,  Esqrs. 
with  such  as  the  Honorable  House  of  Representatives  shall  join,  be  a 
committee  to  consider  and  report  what  is  proper  for  this  Court  to  do 
thereon." 


14  LIBERTY    OF    THE    PRESS 

The  House  concurred  and  a  report  was  made  by  the  committee  as 
follows;  "The  Committee  appointed  to  consider  of  the  paper  called 
'  The  New  England  Courant,'  published  Monday  the  fourteenth  current, 
are  humbly  of  opinion  that  the  tendency  of  the  said  paper  is  to  mock 
religion,  and  to  bring  it  into  contempt,  that  the  Holy  Scriptures  are 
therein  profanely  abused,  that  the  revered  and  faithful  ministers  of  the 
Gospel  are  injuriously  reflected  on.  His  Majesty's  Government  affronted, 
and  the  peace  and  good  order  of  His  Majesty's  subjects  of  this  Province 
disturbed,  by  the  said  '  Courant '  ;  and  for  precaution  of  the  like  offense 
for  the  future,  the  Committee  humbly  propose,  That  James  Franklin, 
the  printer  and  publisher  thereof,  be  strictly  forbidden  by  this  Court  to 
print  or  publish  the  New  England  Courant,  or  any  other  pamphlet  or 
paper  of  the  like  nature,  Except  it  be  first  supervised  by  the  Secretary  of 
this  Province:  and  the  Justices  of  His  Majesty's  Sessions  of  the  Peace 
for  this  County  of  Suffolk,  at  their  next  adjournment,  be  directed  to  take 
sufficient  bonds  of  the  same  Franklin,  for  Twelve  Months'  time." 

To  evade  this  order  the  name  of  Benjamin  Franklin,  (then  an 
apprentice  in  his  brother's  office)  was  substituted  for  that  of  James,  and 
under  his  nominal  ownership  the  Courant  continued  to  appear  until  its 
demise  in  1727. 

In  the  years  between  the  prosecution  of  the  Courant  and  the  middle 
of  the  eighteenth  century,  we  find  little  in  Massachusetts  for  our  subject. 
There  was  a  prosecution  in  1724  of  John  Cl>i'ckley,  Bookseller  of  Boston, 
undertaken  to  punish  him  for  importing  and  selling  a  work  In  which 
Church  organization  and  doctrine  in  Massachusetts  were  attacked,  an 
action  resulting  in  a  fine  of  £50;  and  also  an  indictment  of  Thomas 
Fleet  in  1741  for  publishing  news  from  England  reflecting  on  the 
administration  of  Sir  Robert  Walpole.  The  following  is  the  Record  of 
the  proceedings  in  the  case  of  the  latter.  "  At  a  Council,  held  at  the 
Council  Chamber  in  Boston,  upon  Tuesday,  the  9th  day  of  March,  174.1. 

"  Whereas,  there  is  published  in  the  weekly  paper  called  the  Boston 
Evening  Post  of  yesterday's  date,  a  paragraph  in  the  following  words; 
'  Last  Sunday  Capt.  Gibbs  arrived  here  from  Madeira,  who  Informs  us, 
that  before  he  left  that  Island,  Capt.  Dandridge,  in  one  of  His 
Majesty's  ships  of  forty  guns,  came  In  there  from  England,  and  gave 
an  account,  that  the  Parliament  had  called  for  all  Papers  relating  to  the 
War,  and  'twas  expected  the  Right  Hon.  Sir  Robert  Walpole  would  be 


LIBERTY    OF    THE    PRESS  1 5 

taken  into  custody  in  a  very  few  days.  Capt.  Dandridge  was  going  upon 
the  Virginia  station  to  relieve  the  vahant  and  vigilant  Knight  there, 
almost  worn  out  in  the  service  of  his  country,  and  for  which  he  has  a 
chance  to  be  rewarded  with  a  flag.' 

"Which  paragraph  contains  a  scandalous  and  libelous  Reflection 
upon  His  Majesty's  Administration,  and  may  tend  very  much  to  inflame 
the  minds  of  His  Majesty's  subjects  here  and  disaffect  them  to  his 
Government. 

"  Therefore,  Ordered,  That  the  Attorney-General  do,  as  soon  as 
may  be,  file  an  Information  against  Thomas  Fleet,  the  Publisher  of  the 
said  Paper,  in  His  Majesty's  Superior  Court  of  Judicature,  Court  of 
Assize,  and  General  Gaol  Delivery,  in  order  to  his  being  prosecuted  for 
his  said  oftense,  as  law  and  justice  requires.  W.  Shirley. 

"  Copy  Examined,  per  J.  Willard,  Sec." 

No  further  steps  were  ever  taken  in  this  matter,  for  the  truth  of  the 
statement  was  too  plain  to  admit  of  any  discussion,  but  in  spite  of  that 
the  animus  that  directed  the  Council  was  plainly  visible;  and  the  inhabit- 
ants saw  in  this  but  another  attempt  to  control  the  liberty  of  the  press. 

Hardly  had  this  matter  been  settled  than  Fleet  plunged  into  a  the- 
ological quarrel.  He  published  a  sermon  by  John  Wesley  on  "  Free 
Grace,"  an  action  on  his  part  which  resulted  in  his  receiving  several  sharp 
attacks  from  the  pulpit,  the  Rev.  John  Morehead  being  especially  severe. 
In  the  "  Post  "  of  Mar.  30,  1741,  Fleet  makes  a  reply.  After  stating  that 
he  had  published  the  sermon,  not  because  he  liked  it  but  because  he 
thought  there  was  a  demand  for  it,  he  goes  on  to  say,  "  Of  all  the  books 
of  controversy  that  I  have  ever  read,  (and  I  have  read  some)  I  never 
met  with  one  that  blamed  the  printers.  The  great  Dr.  Edwards,  who, 
for  his  knack  of  finding  fault,  might  have  claimed  the  office  of  Accuser- 
General  of  all  Europe,  and  made  as  free  with  authors  as  any  man  ever 
did,  never  that  I  find,  meddled  with  the  printers;  and  it  is  but  of  late, 
that  some  weak  men  have  thought  it  the  safest  and  easiest  way  to  answer 
books,  and  prejudice  people  against  authors  and  printers,  to  whisper 
against  them  in  chimney  corners,  or  declaim  in  public  and  more  exalted 
places,  where  none  may  with  safety  oppose  them,  or  speak  in  their  own 
defense."  In  Dec,  1742,  writing  in  the  same  strain,  the  occasion  being 
another  religious  dispute,  he  said  '  We  are  credibly  informed  that  an 


l6  LIBERTY    OF   THE    PRESS 

eminent  minister  of  this  town  has  lately  warned  his  people  against  read- 
ing of  pamphlets  and  newspapers,  wherein  are  contained  religious  con- 
troversies. This  seems  a  bold  stroke,  and  a  considerable  step,  (if  the 
advice  should  be  regarded,)  towards  that  state  of  ignorance,  in  which, 
it  seems,  some  folk  would  willingly  see  the  body  of  this  people  enveloped. 
The  next  stroke  may  probably  be  at  the  LIBERTY  OF  THE  PRESS." 

The  next  case  that  we  shall  take  up,  namely  that  of  the  Fowle 
Brothers,  occurred  in  1754.  Daniel  and  Zechariah  Fowle,  although 
closely  associated,  had  separate  printing  establishments,  and  the  younger 
brother,  Zechariah  Fowle,  was  prevailed  upon  to  print  a  pamphlet 
entitled  "  The  Monster  of  Monsters,"  satirizing  the  actions  of  the 
General  Court  of  the  time  and  particularly  an  Act  in  regard  to  excise. 
The  pamphlet  having  appeared  without  an  imprint  suspicion  fell  on 
Daniel  Fowle,  and  the  House  of  Representatives  considering  itself 
aggrieved  passed  the  following  resolution,  dated  Oct.  24,  1755; 
"  Resolved,  that  the  pamphlet  entitled  '  The  Monster  of  Monsters  '  is 
a  false,  scandalous  Libel,  reflecting  upon  the  proceedings  of  the  House 
in  general,  and  on  many  worthy  members  in  particular,  in  breach  of  the 
privilege  thereof. 

"  Ordered,  That  the  said  pamphlet  be  burnt  by  the  hands  of  the 
common  hangman,  below  the  Court-House,  in  King-Street,  Boston,  and 
that  the  Messenger  see  the  same  carried  in  to  execution.  Resolved,  That 
the  Messenger  of  the  House  do  forthwith  take  into  custody  Daniel  Fowle, 
of  Boston,  Printer,  who,  they  are  informed,  was  concerned  in  printing 
and  publishing  the  said  pamphlet,  and  that  the  Speaker  issue  his  warrant 
for  that  purpose." 

He  was  accordingly  arrested  and  taken  before  the  House.  The  par- 
ticulars of  the  case  which  followed  are  taken  from  a  pamphlet,  "  The 
Total  Eclipse  of  Liberty,"  written  and  published  by  D.  Fowle  himself. 
The  Speaker  asked  him  whether  he  knew  anything  of  the  printing  of  the 
book.  Having  examined  it,  he  said  that  he  could  not  have  printed  it  for 
he  had  no  such  type. 

Speaker:     "  Do  you  know  anything  relating  to  the  said  Book?  " 

Fowle  asked  to  have  the  House  decide  whether  he  must  answer  the 
question.  Some  members  answering  '*  Yes  "  he  said  he  had  bought 
some  copies  and  had  sold  them  at  his  shop. 

Speaker:     "  Who  did  you  buy  them  of?  " 


LIBERTY    OF    THE    PRESS  17 

Fowle:  "  They  were,  I  believe,  sent  by  a  young  man,  but  I  cannot 
tell  his  name." 

Speaker:     "Who  did  he  live  with?" 

Fowle:     "  With  Royal  Tyler." 

Speaker:  "Did  you  have  any  conversation  with  him  [Tyler] 
about  them?  " 

Fowle:  "  I  believe  I  might,  in  the  same  manner  I  had  with  many 
others;  not  that  I  thought  him  the  author.  It  was  never  offered  to  me 
to  print." 

Speaker:     "  Did  any  of  your  hands  assist  in  doing  it?  " 

Fowle:  "  I  believe  my  negro  might,  as  he  sometimes  worked  for 
my  brother." 

Speaker:     "  Has  your  brother  any  help?  " 

Fowle:     "No." 

Speaker:     "  Did  you  see  any  of  it  whilst  printing?  " 

Fowle:      "Yes." 

Speaker:     "  Whose  house  was  it  in?  " 

Fowle:     "I  think  it  was  my  brother's." 

Speaker:     "  Where  does  he  live?  " 

Fowle:     "  Down  by  Cross  Street." 

Speaker:     "  What  is  his  name?  " 

Fowle:     "  Zechariah." 

After  this  Fowle  was  by  order  of  the  House  imprisoned  in  the  jail 
where  he  was  confined  for  two  days  and  then  told  to  leave.  He  after- 
wards endeavored  to  obtain  redress  but  without  success.  His  brother, 
Zechariah,  was  not  arrested,  being  at  that  time  ill;  and  Tyler,  on  being 
brought  to  the  House  and  questioned,  refused  to  answer,  and  having 
been  committed  for  contempt  was  soon  released. 

As  the  period  approached  when  the  Revolutionary  War  was  to  break 
out,  those  who  were  contending  for  the  principles  of  liberty  began  to  per- 


l8  LIBERTY    OF    THE    PRESS 

ceiv^e  what  a  very  important  weapon  the  press  might  become.  Accord- 
ingly it  is  not  unusual  to  find  town-meetings  taking  the  matter  up.  At 
Worcester  the  instructions  for  the  representative  to  the  General  Court, 
Joshua  Bigelow,  reported  to  the  town  meeting  by  Ephraim  Doolittle, 
Nathan  Baldwin,  and  Jonathan  Stone,  May  i8th,  1767,  are  typical  of 
the  class : — 

"To  Mr.  Joshua  Bigelow; 

"  Sir; 

"  As  we  have  devolved  upon  you  the  important  trust  of  representing 
us  at  the  Great  and  General  Court,  the  year  ensuing,  we,  your  constitu- 
ents, therefore,  think  it  our  duty  and  interest  to  give  you  the  following 
instructions  relative  to  some  of  your  conduct  in  said  trust. 

"  I.  That  you  use  your  influence  to  maintain  and  continue  that  har- 
mony and  good  will  between  Great  Britain  and  this  Province  which  may 
be  most  conducive  to  the  prosperity  of  each,  by  a  steady  and  firm  attach- 
ment to  English  liberty  and  the  charter  rights  of  this  Province,  and  that 
you  willingly  suffer  no  invasions,  either  through  pretext  of  precedency, 
or  any  other  way  whatsoever;  and  if  you  find  any  encroachments  upon  our 
charter  rights,  that  you  use  your  utmost  ability  to  obtain  constitutional 
redress.     .     .     .    Take  special  care  of  the  liberty  of  the  press."  '^^ 

One  of  the  names  most  widely  known  in  connection  with  the  struggle 
for  the  Liberty  of  the  Press  is  that  of  Isaiah  Thomas.  Born  in  1749,  and 
trained  from  childhood  to  the  work  of  a  printer,  his  early  years  were 
spent  in  wandering  from  Charleston,  South  Carolina  to  Halifax,  Nova 
Scotia.  It  may  be  interesting,  as  showing  the  reputation  v/hich  the 
printers  of  the  New  England  Colonies  had  for  independence,  to  give  an 
account  of  an  incident  which  occurred  during  Thomas'  stay  in  Halifax. 
Anthony  Henry,  the  printer  in  Halifax  for  whom  in  1766  the  youth  was 
working,  was  but  an  indifferent  craftsman  and  left  much  to  Thomas. 
The  latter  had  brought  with  him  from  Boston  notions  of  liberty,  and 
finding  that  the  Gazette  of  Halifax  was  printed  on  stamped  paper,  he 
inserted  a  paragraph  stating  that  "  the  people  of  the  province  were  dis- 
gusted w'th  the  Stamp  Act."  The  master  was  called  to  account  by  the 
government  for  having  printed  sedition,  but  laid  the  blame  on  his  journey- 
man who  was  summoned  to  appear  before  the  Secretary  of  the  Province, 
when  the  following  conversation  ensued : 

16  Wm.  Lincoln.  History  of  Worcester,  Mass.  p.  68. 


LIBERTY    OF    THE    PRESS  I9 

Q.  "  Are  you  the  young  New  England  man  who  prints  for 
Henry  ?" 

A.     "  Yes,  sir." 

Q.  "  How  dare  you  publish  In  the  Gazette  that  the  people  of  Nova 
Scotia  were  displeased  with  the  Stamp  Act?  " 

A.      "  I  thought  it  was  true." 

Secretary;  "You  had  no  right  to  think  so.  If  you  publish  any 
more  of  such  stuff  you  shall  be  punished.  You  may  go,  but  remember  you 
are  not  in  New  England." 

Thomas;     "  I  will,  sir."  ^'^ 

Thomas  afterwards  published  in  Boston  a  paper  called  the  Massa- 
chusetts Spy  and  in  177 1  he  became  seriously  involved  with  the  govern- 
ment concerning  an  article  (in  the  issue  of  Nov,  14,)  signed  Muclus 
Scaevola,  in  which  it  was  declared  that  Hutchinson  was  not  the  legal 
governor  of  the  Province.  Extracts  from  the  Boston  Evening  Post  and 
the  Boston  Gazette  of  Nov.  18,  give  an  account  of  what  occurred. 

"  We  hear  that  at  a  council  held  at  the  Council  Chamber  last  Satur- 
day, a  piece  signed  Mucius  Scaevola,  published  in  the  Massachusetts 
Spy  of  Nov.  14th,  printed  by  Isaiah  Thomas,  was  taken  into  considera- 
tion, when  it  was  unanimously  ordered,  that  the  Attorney  General  be 
directed  to  prosecute  the  publisher  thereof.  It  is  said  the  piece  referred 
to  (from  its  nature  and  tendency)  is  the  most  daring  production  ever 
published  In  America.    ^^ 

"  On  Friday  last.  In  the  afternoon,  his  Excellency  the  Governor  laid 
before  the  Council  for  their  advice  thereon,  a  paper  in  the  Massachusetts 
Spy  of  Thursday,  signed  Mucius  Scaevola,  said  to  contain  divers  sedi- 
tious expressions,  &c.  The  council  after  debating  till  sundown  adjourned 
till  the  next  day,  when  they  met  again  and  s-^nt  for  the  printer,  who  in 
answer  to  the  summons,  told  the  messenger  he  was  busy  in  his  office,  and 
should  not  attend;  Upon  which  it  is  said  a  motion  was  made  for  his  com- 
mitment to  prison  for  contempt — but  did  not  obtain.  Whether  the 
abundant  lenity  of  the  honourable,  or  from  their  having  no  legal 
authority  In  the  case,  has  not  yet  transpired  to  us.    The  final  result  was, 

17  B.  F.  Thomas,  Memoirs  of  J.  Thom_as,  p.  19. 

18  Boston  Evening  Post. 


20  LIBERTY    OF    THE    PRESS 

their  unanimous  advice  to  the  Governour  to  order  the  King's  Attorney 
to  prosecute  the  Printer  at  Common-Law."  ^^ 

Joseph  Greenleaf,  a  justice  of  the  peace  for  the  county  of  Plymouth, 
being  suspected  of  having  some  concern,  either  as  a  writer,  or  otherwise, 
in  the  Massachusetts  Spy,  received  a  summons  of  the  purport  following, 
which  he  laid  before  the  public  in  the  Spy  of  November  22,  177  i. 

"  Province  of  Massachusetts  Bay — To  Joseph  Greenleaf,  Esq.,  of 
Boston,  in  said  province, — 

"  You  are  required  to  appear  before  the  Governor  and  Council,  at 
the  Council-chamber  in  Boston,  on  Tuesday  the  tenth  day  of  December 
next,  at  ten  o'clock  in  the  forenoon,  then  and  there  to  be  examined  touch- 
ing a  certain  paper  called  the  Massachusetts  Spy,  published  the  fourteenth 
day  of  November,  177  i  ;  whereof  you  are  not  to  fail  at  your  peril.  Dated 
at  Boston,  the  i6th  day  of  November,  1771.  "By  order  of  the  Gov- 
ernor, with  the  advice  of  Council, 

Thomas  F  ucker,  Secretary." 

Greenleaf  did  not  obey  the  summons,  and  on  the  twelfth  of  Decem- 
ber following,  the  Boston  News-Letter,  (Court  Gazette)  contained  the 
proceedings  of  the  Governor  and  Council  of  the  tenth  of  that  month  in 
consequence  thereof,  viz. 

"  At  a  Council  held  at  the  Council-Chamber  in  Boston,  Tuesday, 
December  loth,  1771. 

"  His  Excellency  having  acquainted  the  Board  at  their  last  meeting, 
that  Joseph  Greenleaf,  Esq;  a  Justice  of  the  Peace  for  the  county  of  Ply- 
mouth, was  generally  reputed  to  be  concerned  with  Isaiah  Thomas,  in 
printing  and  publishing  a  News-Paper,  called  the  Massachusetts  Spy, 
and  the  said  Joseph  Greenleaf  having  thereupon  been  summoned  to 
attend  the  board  on  this  day,  in  order  to  his  examination  touching  the 
same,  and  not  attending  according  to  summons,  it  was  thereupon  unani- 
mously advised,  that  the  said  Joseph  Greenleaf  be  dismissed  from  the 
office  of  a  Justice  of  the  Peace,  which  advice  was  approved  of  and  con- 
sented to  by  his  Excellency,  and  the  said  Joseph  Greenleaf  is  dismissed 
from  the  said  office  accordingly.  "  A  true  copy  from  the  minutes  of 
Council.  Thomas  Flucker,  Secretary." 

19  Boston  Gazette. 


LIBERTY    OF    THE    PRESS  21 

A  bill  of  indictment  against  Thomas  for  publishing  an  obnoxious 
libel  was  then  prepared  by  the  Attorney-General ;  the  Chief  Justice  deliv- 
ered a  charge  to  the  grand  jury,  in  which  he  spoke  of  the  intemperate  and 
dangerous  position  of  the  press  and  the  necessity  for  stopping  the  trouble 
before  it  assumed  greater  proportions;  but  the  grand  jury  refused  to 
indict.  The  court  then  directed  the  Attorney-General  to  file  an  informa- 
tion against  Thomas,  but  such  a  storm  of  opposition  arose  from  all 
quarters,  on  the  ground  that  the  rights  and  privileges  of  the  individual 
were  being  destroyed,  that  the  government  reconsidered  its  position  and 
decided  that  policy  required  that  the  matter  be  dropped. 

Thomas  then,  to  show  that  his  position  was  not  without  precedent, 
reprinted  in  the  issue  of  Oct.  lo,  1772,  from  the  Middlesex  Journal  2*^ 
an  address  to  the  King,  which  was  far  more  disloyal  in  tone  and  spirit, 
and  yet  which  had  passed  unnoticed  not  only  when  published  in  England 
originally,  but  also  when  republished  in  New  York.  The  Governor  and 
Council  attempted  to  take  some  action  in  reply,  but  failed,  since  no  jury 
could  be  found  to  indict. 

One  more  instance  of  oppression  closes  our  account  of  the  battle  for 
the  liberty  of  the  press  in  Massachusetts.  Benjamin  Edes  and  John  Gill 
published  the  "  Boston  Gazette  and  Country  Journal,"  distinguished  for 
its  spirited  political  essays.  Force's  "  American  Archives  "  -^  tells  us  that 
Gill  in  Sept.  1775  was  imprisoned  for  twenty-nine  days  for  printing  sedi- 
tion, treason,  and  rebellion.  That  the  views  of  the  publishers  were 
revolutionary  in  their  tenor  may  be  judged  from  an  article  published  in 
the  Gazette  commenting  on  an  attack  made  on  the  printers  of  the  Centinel; 
here  is  shown  the  boldness  of  the  publishers  in  defense  of  the  liberty 
of  the  press,  even  when  that  liberty  was  invaded  by  an  attack  on  a  political 
opponent. 

"  The  attack  made  upon  the  printers  of  the  Centinel  on  Saturday  last, 
by  a  number  of  well-known  persons,  ought  to  excite  the  serious  attention 
of  all  those,  who  duly  regard  the  bulwark  of  our  liberties,  THE  FREE- 
DOM OF  THE  PRESS.  If  a  printer  for  advertising  that  he  intends  to 
publish  a  certain  book  for  the  information,  or  merely  the  amusement  or 
innocent  diversion  of  his  fellow-citizens,  is  to  be  beset  and  abused  by  a 
set  of  club-men,  because  the  title-page  does  not  happen  to  hit  their  taste, 
we  may  take  a  farewell  of  our  independence,  which  we  have  gloriously 

20  Of  England. 

21  Vol.  Ill,  p.  712. 


22  LIBERTY    OF    THE    PRESS 

obtained,  not  without  great  expense  of  our  treasure,  and  the  loss  of  some 
of  our  best  blood.  A  wound  in  so  tender  a  point  must  surely  prove  fatal. 
Should  the  government  appoint  licensers  of  the  Press,  it  would  give  just 
cause  for  offense.  What  right  then,  has  any  set  of  men,  to  forbid  the 
printing  of  a  book,  till  it  has  had  their  Imprimatur,  or  to  punish  a  printer 
with  club-law  for  advertising  it?  " 

With  the  cases  of  Edes  and  Gill  we  reach  the  breaking  out  of  the 
Revolution,  the  limit  of  our  survey.  The  government  had  by  this  time 
become  practically  powerless  in  its  attempts  to  control  the  press,  for  with 
the  loss  of  the  censorship,  the  only  way  in  which  it  could  act  was  through 
an  indictment,  and  this  required  a  jury  friendly  to  the  crown,  something 
which  was  not  at  that  time  at  all  easy  to  obtain. 


CHAPTER   III 

THE    PRESS     IN    PENNSYLVANIA 

IN  the  Other  New  England  colonies  we  find  nothing  of  sufficient 
importance  to  justify  an  investigation,  but  when  we  pass  to  Pennsyl- 
vania we  again  come  into  a  field  where  the  battle  for  the  liberty  of 
the  press  was  vigorously  carried  on.  This  was  the  second  colony  where 
the  press  was  established,  and  the  printer  was  William  Bradford  after- 
wards of  New  York.  Coming  to  Philadelphia  from  England  in  1682, 
then  returning  to  England,  and  finally  settling  permanently  in  America  in 
1685,  the  first  issue  of  his  press,  a  "  Kalendarium  Pennsylvaniense,  or 
America's  Messenger,  an  Almanack,"  dated  1685,  taught  him  to 
appreciate  how  carefully  he  must  walk  in  order  to  avoid  trouble.  Oppo- 
site the  days  of  the  month  he  set  down  the  remarkable  events  that  had 
occurred  on  them  in  the  past.  Opposite  one  he  printed  "  The  beginning 
of  Government  here  by  Lord  Penn."  No  sooner  had  the  Secretary  of  the 
Council  read  these  words  in  the  advance  sheets  than  he  summoned  Brad- 
ford to  appear  before  the  Council,  where  he  was.  ordered  to  blot  out  the 
words  "  Lord  Penn  "  and  warned  "  Not  to  print  anything  but  what  shall 
have  lycence  from  ye  Council."  ^ 

The  Society  of  Friends  followed  the  lead  of  the  Council  and  the 
minutes  of  the  Friends'  Meetings  of  the  time  give  evidence  of  a  desire 
on  their  part  to  share  in  the  control. 

"Quarterly  Meeting  10  Month  5,  1687. 

"  Ordered  by  this  Meeting  that  Wm.  Bradford  the  Printer  do  show 
what  concerns  Friends  or  Truth  before  printing,  to  the  Quarterly  Meet- 
ing of  Philadelphia;  and  if  it  requires  speed,  to  the  Monthly  Meeting 
where  it  may  belong. 

And  it  is  further  Ordered  by  the  Meeting  that  John  Eakly,  John 
Sheldon,  Samuel  Richardson  and  Samuel  Carpenter  do  view  or  peruse 
the  Almanack  of  Edward  Eakin's  writing,  before  it  goes  to  be  printed, 
on  behalf  of  this  meeting."  - 

1  Min.  of  Provincial  Council,  Vol.  I,  p.  115. 

2  Quoted  in  Wallace.     "Bradford  Centenary"  p.  59. 

23 


24  LIBERTY    OF    THE    PRESS 

Thus  we  find  Bradford  under  two  masters,  a  censorship  of  State  and 
Church.  It  Is  not  difficult  for  us  to  understand  the  troubles  that  Brad- 
ford had  to  endure,  under  a  Governor  and  Council  jealous  of  any  infringe- 
ment on  the  royal  prerogative,  and  a  Meeting  that  would  scrutinize  every 
line  printed  for  sign  of  heresy.  And  so  Bradford  found  each  year  more 
troublesome  than  the  last. 

In  1689  he  was  in  serious  trouble  with  Governor  John  Blackwell, 
when  as  J.  W.  Wallace  says,^  "  He  was  the  first  man  to  establish  the 
press  in  these  Middle  colonies.  He  was  the  first  man,  anywhere,  so  far 
as  I  know,  to  maintain  its  freedom  against  arbitrary  power."  It  was  at 
a  time  when  there  was  much  feeling  between  the  Governor  and  the  people 
as  to  their  respective  rights  and  Bradford  printed  the  charter  which  Penn 
had  given  but,  since  he  appears  to  have  anticipated  trouble,  he  put  no 
imprint  on  the  tract.  However,  as  he  was  the  only  printer  In  the  Province 
It  required  no  deep  thought  to  discover  from  whose  press  It  must  have 
proceeded.  In  what  Bradford  did  there  Is  no  doubt  that  he,  or  those  for 
whom  he  worked,  had  given  to  the  Governor  serious  cause  for  complaint. 
To  quote  John  Bach  McMaster,^  "  The  Opposition,  Quakers  though 
they  were,  had  carefully  and  deliberately  distorted  the  Frame  to  suit  their 
own  ends.  From  one  line  In  the  Charter  they  dropped  the  word  '  Jurls: 
diction.'  From  another  which  read  '  A  Committee  of  the  Provincial 
Council,'  they  took  away  '  of  the  Provincial  Council.'  But  the  most 
serious  change  of  all  was  In  the  line  which  declares  that  by  the  Council 
and  Assembly  '  All  laws  shall  be  made,  officers  chosen  and  publick  affairs 
transacted.'  From  this  the  words  '  officers  chosen  '  were  carefully 
omitted." 

The  matter  was  first  discussed  in  the  Council  in  whose  Minutes  for 
May  9th,  1689  we  find  the  following  entry:     "  The  Governor  acquainted 

the  Board that  he  had  this  morning  received  a  printed 

paper,  (called  the  frame  of  the  Government  of  this  Province  etc.) 
brought  unto  him  by  the  Secretary,  who  said  he  had  it  from  Wm.  Clark, 
a  member  of  this  board,  and  that  he  had  it  from  Jos.  Growdon;  who 
being  present,  the  Goverr.  desired  to  know  of  him  how  he  came  by  it. 

Jos.  Growdon  answered,  Wm.  Clark  had  a  little  book  of  me.  The 
Goverr.  asked  him  again  how  he  came  by  It,  and  told  him  It  was  a  high 
presumption  In  any  man,  especially  a  member  of  that  Board,  to  promote 

3  "  Bradford  Centenary,"  p.  49. 

4  "  A  Free  Press  in  the  Middle  Colonies,"  Princeton  Review,   Vol.  I. 


LIBERTY    OF    THE    PRESS  25 

the  publishing  of  any  paper  of  such  concerne  without  direction,  Especially 
for  that  it  was  false  in  so  fundamental  a  poynt  as  that  was,  and  that  unless 

he  could  cleare  himselfe  he  was  liable  to  Censure The 

Govrr.  Said that  he  looked  upon  it,  as  being  of  a  dan- 
gerous nature  (in  the  present  condition  of  our  affayrs,  and  distractions  the 
Countrey  were  in)  to  have  such  a  paper  published;  not  only  for  that  It 
was  false.  But  for  that  the  Proprietor  had  declared  himself  against  the 
using  of  the  printing  presse;  and  especially  for  that  there  seemed  to  him 
to  be  several  things  therein  contayned  which  though  they  might  be  fit  for 
the  people  of  this  Province  to  know  (and  that  they  might  do  by  having 
resort  to  the  Keeper's,  where  it  was  lodged,)  but  would  be  of  ill  con- 
sequence to  be  known  to  others,  and  might  possibly  bring  the  Proprietor's 
title  in  question." 

Bradford  was  summoned  to  appear  before  the  Governor  and  Council, 
when  the  following  conversation  ensued ;  ^ 

The  Governor  having  taxed  him  with  the  printing,  Bradford  replied; 

Bradford. —  "  Since  thee  came  here,  Governour,  I  never  heard  of 
anything  to  the  contrary,  but  that  I  might  print  such  things  as  came  to  my 
hand,  whereby  to  get  my  living;  it  is  that  by  which  I  subsist;  nor  do  I 
know  of  any  Imprimatur  appointed." 

Governor. —  "  Sir,  I  am  Imprimatur;  and  that  you  shall  know.  I  will 
bind  you  in  a  bond  of  £500,  that  you  shall  print  nothing  but  what  I  do 
allow  of ;  or  I  shall  lay  you  fast." 

Bradford. —  "  Governour,  I  have  not  hitherto  known  thy  pleasure 
herein,  and  therefore  hope  that  thou  wilt  judge  the  more  favorably,  if 
I  have  done  anything  that  does  not  look  well  to  some." 

Governor. — "  Sir,  I  have  particular  order  from  Governour  Penn  for 
the  suppressing  of  printing  here,  and  narrowly  to  look  after  your  press; 
and  I  will  search  your  house,  look  after  your  press,  and  make  you  give  In 
£500  security  to  print  nothing  but  what  I  allow,  or  I'll  lay  you  fast." 

William  Penn's  known  relations  with  King  James  II,  and  the  attitude 
of  the  latter  toward  the  liberty  of  the  Individual,  and  his  attempts  In 
England  to  control  the  press,  may  explain  this  position  which  Penn  had 
assumed.     A  foreshadowing  of  it  appears  in  the  Minutes  of  the  Provln- 

5  Wallace.     "  Bradford  Centenary,"  p.  50.     Original  in  Bradford's  handwriting  in  possess- 
sion  of  N.  Y.  Hist.  Society. 


1/ 


v/ 


26  LIBERTY    OF    THE    PRESS 

cial  Council,  23d  day,  3d  month,  1683,*^  Wm.  Penn  himself  presiding. 
*'  It  was  proposed  to  have  an  attested  Coppy  of  the  Laws  printed.  After 
some  debate  the  Govr.  put  the  Question,  and  it  was  carried  in  the  Nega- 
tive, they  should  not  be  printed." 

Under  such  restrictions  as  these  we  are  not  surprised  to  find  that  the 
young  man  seriously  considered  the  advisability  of  returning  to  England, 
and  that  he  applied  to  and  received  from  the  General  Meeting  of  Friends 
a  certificate  of  good  character  and  dismissal  to  England.  But  so  much 
dissatisfaction  was  expressed  on  all  sides  at  the  prospect  of  his  leaving 
Philadelphia  that  the  General  Society  at  its  next  meeting  voted  him  an 
annual  subsidy  of  £40,  and  agreed  to  give  him  enough  work  to  warrant 
his  remaining.  The  idea  of  returning  to  England  seems  now  to  have 
been  finally  laid  aside. 

Three  years  later,  in  1692,  George  Keith,  a  member  of  the  Society 
of  Friends,  became  involved  in  a  religious  dispute  and  parties  were  soon 
formed.  Keith,  in  order  to  present  his  position  to  the  General  Meeting 
of  the  Friends,  wrote  a  pamphlet,  setting  forth  his  views  and  claims,  and 
this  pamphlet  was  published  by  Wm.  Bradford,  who  belonged  to  his 
faction.  For  this  Bradford  was  arrested,  and  put  in  prison,  and  his  press 
and  tools  seized  by  the  sheriff.  John  McComb,  for  having  two  copies 
of  the  pamphlet  in  his  possession,  was  put  in  prison  along  with  Bradford. 
The  Warrant  for  committing  Bradford  and  McComb  read  in  parts  as 
follows :  "  Whereas,  Wm.  Bradford,  printer,  and  John  McComb, 
taylor,  being  brought  before  us  on  an  information  of  Publishing,  Utter- 
ing, and  Spreading  a  Malitious  and  Seditious  paper,  intituled  An  Appeal 
from  the  Twenty-Eight  Judges  to  the  Spirit  of  Truth  etc.  Tending  to 
the  disturbance  of  the  Peace  and  the  Subversion  of  the  Present  Govern- 
ment, and  the  said  Persons  being  required  to  give  Securitie  to  answer  it 
at  the  next  Court,  but  they  refused  so  to  do.  These  are  therefore  to 
require  you  to  take  into  your  Custody  etc." 

When,  at  the  next  session  of  the  Court  Bradford  was  brought  to  the 
bar,  he  was  presented  as  the  printer  of  the  seditious  paper  "  The  Appeal  " 
which  was  declared  to  have  a  tendency  to  weaken  the  hands  of  the  gov- 
ernment; and  in  the  second  place  it  was  charged  that  he  had  printed  it 
without  putting  his  name  on  it.  When  the  jury  were  called  he  challenged 
two  on  the  ground  that  they  had  formed  and  expressed  opinions,  not  to 

G  Min.  Prov.  Council  I,  p.  18. 


LIBERTY    OF    THE    PRESS  2/ 

the  fact  of  his  having  published  the  paper,  but  as  to  its  being  of  a  sedi- 
tious character;  opinions  which  he  himself  had  heard  them  express.  The 
following  discussion  then  ensued:  Prosecuting  Attorney  "  Hast  thou  at 
any  time  heard  them  say  that  thou  printed  the  paper?  for  that  is  only 
what  they  are  to  find." 

Bradford. — "  That  is  not  only  what  they  are  to  find.  They  are  to 
find  also  whether  this  be  a  seditious  paper  or  not,  and  whether  It  does 
tend  to  weaken  the  hands  of  the  magistrates." 

Attorney. — "  No,  that  is  a  matter  of  law,  which  the  jury  Is  not  to 
meddle  with,  but  find  whether  Wm.  Bradford  printed  it  or  not. 

Justice  Jennings. — "  You  are  only  to  try  whether  Wm.  Bradford 
printed  it  or  not?  " 

Bradford. — This  Is  wrong;  for  the  jury  are  judges  in  the  law  as  well  »^ 
as  in  matter  of  fact." 

Justice  Cook. — "  I  will  not  allow  these  exceptions  to  the  jurors." 

On  this  David  Paul  Brown  of  the  Philadelphia  Bar  remarks:  "  We 
have,  therefore,  in  this  trial,  evidence  of  the  fact.  Interesting  to  the  whole 
press  of  America,  and  especially  interesting  to  the  Bar  and  Press  of 
Pennsylvania,  that,  on  the  soil  of  Pennsylvania,  the  father  of  her  press 
asserted,  in  1692,  with  a  precision  not  since  surpassed,  a  principle  in  the  ^ 
law  of  libel,  hardly  then  conceived  anywhere,  but  which  now  (1856)  ^ 
protects  every  publication  in  this  State  and  in  much  of  our  Union :  a  prin- 
ciple which  English  judges,  after  the  struggles  of  the  great  Whig  Chief 
Justice  and  Chancellor,  Lord  Camden,  throughout  his  whole  career,  and 
the  brilliant  declaimer,  Mr.  Erskine,  were  unable  to  reach;  and  which, 
at  a  later  day,  became  finally  established  In  England  only  by  the  enact- 
ment of  Mr.  Fox's  Libel  Bill  In  Parliament  itself."  ^ 

The  jury  did  not  agree,  an^  Bradford  was  held  over  to  the  next 
Term.  At  this  time  he  was  not  tried  again,  but  a  request  by  him  that  his 
tools  and  press  be  returned  to  him  was  denied.  Then  Penn  was  deprived 
of  the  province,  and  when  Governor  Fletcher  arrived  in  Philadelphia  and 
held  his  Council,  we  find  a  petition  from  Bradford  in  the  matter.^ 
"  Upon  reading  the  petition  of  Wm.  Bradford,  printer,  directed  to  his 
Excell.  wherein  he  setts  forth  that  in  September  last  his  tooles  and  Letters 

7  David  Paul  Brown,  The  Forum,  Vol.  I,  p.  281. 

8  Min.  Provincial  Council,  Apr.  27,  1693. 


28  LIBERTY    OF    THE    PRESS 

were  Seized  by  order  of  the  Late  Rulers,  for  printing  some  books  of  Con- 
troversie,  and  are  still  kept  from  him,  to  the  great  hurt  of  his  family,  and 
prays  Reliefe.  His  Excell.  did  ask  the  advice  of  this  board.  The  Sev- 
erall  members  of  Councill  being  well  acquainted  with  the  truth  of  the 
petitioner's  allegations,  are  of  opinion,  and  doe  advise  His  Excell.  To 
Cause  the  petitioner's  tooles  and  Letters  to  be  restored  to  him. 

Ordered  that  John  White,  Sheriffe  of  Philadelphia,  doe  Restore  to 
William  Bradford,  printer,  his  tooles  and  Leteers,  taken  from  him  in 
September  Last." 

In  the  same  year  Bradford,  on  the  advice  and  even  solicitation  of 
Governor  Fletcher,  removed  to  New  York  where  we  shall  meet  with  him 
again,  when  we  study  the  condition  of  the  press  in  that  colony. 

Andrew  Bradford,  the  son  of  that  Wm.  Bradford  of  whom  we  have 
just  written,  was  born  in  Philadelphia  in  1686,  and,  after  going  to  New 
York  with  his  father,  returned  to  Philadelphia  in  17 12  where  he  carried 
on  the  business  of  printing,  having,  through  his  father's  influence,  secured 
a  press  belonging  to  the  Society  of  Friends.  Here  he  was  appointed 
"  Printer  to  the  Province,"  and  on  Dec.  22,  17 19  he  began  to  print  "  The 
American  Weekly  Mercury  "  the  first  newspaper  in  the  Middle  States, 
where  his  father  had  founded  the  first  press.  In  172 1  he  in  his  turn 
became  involved  in  a  dispute  with  the  law  oflScers  of  the  Crown.  At  this 
time,  a  discussion  going  on  in  regard  to  the  finances  of  the  Province,  there 
appeared  in  the  Mercury  of  Jan.  2,  172 1  (O.  S.)  the  following 
paragraph: 

"  Our  General  Assembly  are  now  sitting,  and  we  have  great  expecta- 
tions from  them,  at  this  juncture,  that  they  will  find  some  effectual  remedy 
to  revive  the  dying  credit  of  the  Province,  and  restore  us  to  our  former 
happy  circumstances." 

In  regard  to  this  paragraph  we  fiilti  the  following  in  the  Minutes  of 
the  Provincial  Council  for  Jan.  19,  1721.  (0.  S.)  "Upon  a  motion 
made,  that  Andrew  Bradford,  Printer,  be  examined  before  this  Board 
concerning  the  publishing  of  the  late  Pamphlet,  entituled  Some  Remedies 
proposed  for  the  restoring  the  Sunk  Credit  of  the  Province  of  Pennsyl- 
vania, as  also  of  the  Weekly  Mercury  of  the  2d  of  January  instant,  the 
last  paragraph  whereof  seems  to  have  been  intended  as  a  reflection  upon 
the  Credit  of  this  province:  it  is  ordered  That  he  the  said  Printer,  have 
notice  to  attend  this  Board  at  the  next  meeting  of  Council."     And  on 


LIBERTY    OF    THE    PRESS  29 

Feb.  ist  we  read  "  The  Board  being  informed  that  Andrew  Bradford,  the 
Printer,  attended  according  to  order.  He  was  called  in  and  examined  con- 
cerning a  late  Pamphlet,  entituled  Some  Remedies  proposed  for  restoring 
the  Sunk  Credit  of  the  Province  of  Pennsylvania;  Whereupon,  He  de- 
clared that  He  knew  nothing  of  the  printing  or  of  the  publishing  of  the 
said  Pamphlet;  And  being  reprimanded  by  the  Governor  for  publishing 
a  certain  paragraph  in  his  News-Letter,  called  the  American  Mercury  of 
the  2d  of  January  last,  He  said  that  it  was  inserted  by  his  Journey-Man, 
who  composed  the  said  Paper,  without  his  Knowledge  and  that  he  was  very 
sorry  for  it,  and  for  which  he  humbly  submitted  himself  and  asked  Pardon 
of  the  Govr.  and  the  Board : — Whereupon  the  Governour  told  him.  That 
he  must  not  for  the  future  presume  to  publish  anything  relating  to  or  con- 
cerning the  affairs  of  this  Government,  or  the  Government  of  any  other 
of  his  Majesty's  Colonies,  without  the  permission  of  the  Governour  or 
Secretary  of  this  province,  for  the  time  being.  And  then  he  was  dismissed 
and  the  Council  adjourned." 

For  eight  years  Andrew  Bradford  kept  free  from  mixg  trouble  with 
the  government,  but  in  1729  he  was  once  more  summoimd  to  appear 
before  the  Council.  At  this  time  Benjamin  Franklin  wa^contributing 
tQ,  a  series  of  articles  appearing  in  the  Mercury,  and  afterwards  con- 
tinued by  others  under  the  common  name  of  Busy  Body.  In  No.  31, 
published  just  before  the  date  of  an  election,  he  said:  "  To  the  frierM 
of  liberty,  firmness  of  mind  and  public  spirit  are  absolutely  requisite ;  and 
this  quality,  so  essential  and  necessary  to  a  noble  mind,  proceeds  from  a 
just  way  of  thinking  that  we  are  not  bom  for  ourselves  alone,  nor  our 
own  private  advantages  alone,  but  likewise  and  principally  for  the  good 
of  others  and  service  of  civil  society.  This  raised  the  genius  of  the 
Romans,  improved  their  virtue,  and  made  them  protectors  of  mankmd. 
This  principle,  according  to  the  motto  of  these  papers,  animated  the 
Romans. — Cato  and  his  followers — and  it  was  impossible  to  be  thought 
great  or  good  without  being  a  patriot;  and  no  one  could  pretend  to  cour- 
age, gallantry,  and  greatness  of  mind,  without  being  first  of  all  possessed 
with  a  public  spirit  and  love  of  their  country." 

Of  this  Essay  Mr.  David  Paul  Brown »  remarks,  "  It  was  well 
written,  and  though  bold  in  parts,  an  air  of  pleasantry  took  from  it  much 
aspect  of  malignity.  Indeed  the  w^hole  piece  is  subdued,  below  the 
standard  even  of  orthodoxy  in  modern  democratic  politics,  and  contains 

9  Forum  I,  283. 


30  LIBERTY    OF    THE    PRESS 

much  which  deserves  and  would  receive  at  all  times,  the  admiration  of 
every  party." 

The  matter  was  at  once  taken  up  by  the  government,  as  the  following 
extract  for  Sept.  20,  1729  from  the  Minutes  of  the  Provincial  Council 
shows : 

"  The  Governor  acquainted  the  Board  that  he  now  called  them 
together  to  lay  before  them  a  News  paper  published  in  this  Province, 
printed  and  sold  by  Andrew  Bradford,  numbered  506,  in  which  a  Letter 
signed  Brutus  or  Casslus,  or  both,  appears  to  reflect  on  the  King  and 
government  of  Great  Britain,  and  to  Incite  the  Inhabitants  of  this  Prov- 
ince to  throw  off  all  subjection  to  the  regular  and  established  Powers  of 
Government.  And  the  same  being  read  and  considered  by  the  Board,  It 
Is  their  Opinion  that  it  Is  a  wicked  and  seditious  Libell,  tending  to  intro- 
.duce  Confusion  under  the  notion  of  Liberty,  and  to  just  regard  due  to 
1/  Persons  in  Authority.  'Tis  therefore  Ordered  that  the  said  Bradford 
be  immediately  taken  into  Custody,  and  examined  by  the  Mayor  and 
Recorder  of  this  City,  or  any  other  two  Justices  of  the  Peace,  and  that 
his  Dwelling  House  and  Printing  Office  be  searcht  for  the  written  Copy 
of  the  said  Libel,  that  the  author  may  be  discovered,  and  that  the  Attor- 
ney General  commence  a  prosecution  against  the  said  Bradford  for  print- 
ing and  publishing  the  same. 

N.  B. 

This  order  being  executed,  and  the  Original  Copy  being  found,  it 
appeared  to  be  wrote  by  one  Campbell,  a  Parson  of  dissolute  character, 
who  had  lived  for  some  time  in  Newcastle  County,  but  his  scandalous 
behaviour  proving  Intolerable  to  his  Hearers  there,  he  removed  to  Long 
Island,  from  whence  he  sent  that  Paper  with  others  of  the  same  strain,  by 
^  the  Post  to  Andrew  Bradford,  who  without  considering  or  knowing  Its 
tendency,  printed  It  as  he  did  other  Papers  In  his  Mercury.  His  ignor- 
ance therefore,  gave  some  Abatement  to  the  Prosecution;  he  was  however 
committed,  and  then  Bound  over  to  the  Court." 

The  matter  seems  to  have  ended  here.  At  least  In  the  next  Issue 
of  the  Mercury,  Bradford  makes  no  apology  save  that  he  thought  the 
remarks  prefaced  to  the  article  complained  of  had  been  sufficiently  clear 
to  prevent  any  misunderstanding.  Following  this,  comes  another  article 
in  a  tone  much  like  that  of  the  preceding  one  and  prefaced  by  the  state- 
ment that  It  had  been  set  in  type  before  the  action  taken  by  the  Lieutenant 


LIBERTY    OF    THE    PRESS  31 

Governor  Gordon,  and  the  Council,  and  that  he,  Bradford,  saw  no  reason 
to  make  any  alteration  in  it  before  sending  it  out  to  the  public.  It  is 
probably  owing  to  Andrew  Bradford's  well  recognized  prominence  in  the 
community  and  his  reputation  for  sobriety  of  speech  and  uprightness  of 
character  that  the  matter  was  suffered  to  drop.  But  from  this  time  it  is 
easy  to  discern  that  the  press  in  Pennsylvania  had  greatly  lost  its  dread 
of  government  supervision  and  from  time  to  time  criticized  without  any 
reproof,  the  action  of  those  in  office,  in  a  way  and  with  language  which 
a  few  years  earlier  would  have  subjected  the  printer  and  the  writer  alike 
to  most  unpleasant  consequences. 


In  1758  Wm.  Moore,  then  President  of  the  Court  of  Common  Pleas 
for  the  County  of  Chester,  became  Involved  in  a  dispute  with  the  House 
of  Assembly  of  Pennsylvania  and  Moore  presented  an  Address  to  the 
Governor  which  was  afterwards  translated  into  German  and  published 
in  a  German  newspaper  in  Philadelphia  under  the  direction  of  the  Rev. 
Dr.  Wm.  Smith,  son-in-law  of  Judge  Moore  and  at  that  time  Provost  of 
the  University  of  Pennsylvania.^*^  This  Address  the  Assembly  decided 
to  be  a  libel  and  ordered  the, arrest  of  Moore  and  Smith.  Moore  was 
imprisoned  for  writing  the  Address,  and  Smith  (although  it  was  shown 
that  It  had  been  published  In  the  two  English  papers  printed  In  Phila- 
delphia and  that  no  objection  had  been  made  by  the  x^ssembly),  was 
ordered  Imprisoned  for  translating  it  into  German  and  causing  it  to  be 
published. 

On  being  informed  that  he  could  escape  imprisonment  by  making  an  y^ 
apology,  he  replied,  "  that  he  thought  It  was  his  duty  to  keep  the  Dutch 
press  as  free  as  any  other  press  In  the  Province ;  and,  as  he  was  conscious 
of  no  offense  against  the  House,  his  lips  should  never  give  his  heart  the 
lie;  there  being  no  punishment,  which  they  could  Inflict,  half  so  terrible 
to  him  as  the  thought  of  forfeiting  his  veracity  and  good  name  with  the 
world."  11 

He  afterwards  went  in  the  same  year  (1758)  to  England,  to  appeal  "^ 
before  the  Privy  Council  and  was  successful  in  his  suit. 

Wm.  Bradford,  grandson  of  the  Wm.  Bradford  who  had  set  up  the 
first  printing  press  In  Pennsylvania,  and  nephew  of  Andrew  Bradford, 

10  Penn.  Mag.  of  Hist.  Vol.   IV,   p.   373,  Art.  on  Rev.  Wm.   Smith,   D.   D. ;    also  Horace 
Wemyss    Smith,  "  Life  and  Correspondence  of  the  Revd.  Wm.  Smith,  D.  D.,  Vol.  I." 

11  American  Magazine,  Jan.  1758.     Journal  of  House  of  Assembly  of  Pennsylvania  for 
1757  and  1758. 


'^ 


32  LIBERTY    OF   THE    PRESS 

began  in  Philadelphia  in  1742  the  publication  of  a  newspaper  called  "  The 
Pennsylvania  Journal,"  in  which  he  advocated  in  a  style  gradually  increas- 
ing in  intensity  and  clearness  of  statement  the  rights  of  the  colonies  as 
opposed  to  Great  Britain,  The  subject  of  the  liberty  of  the  press  would 
naturally  be  of  importance  to  a  member  of  the  Bradford  family,  and  in 
the  issues  of  Sept.  1766  Bradford  engaged  In  a  controversy  which  gave 
him  an  opportunity  to  express  his  views.  The  Journal  of  Sept.  4,  pub- 
lished a  number  of  letters  from  John  Hughes  (a  member  of  the  Legis- 
lature and  also  lately  appointed  by  the  King  to  collect  the  stamp-tax) ,  to 
the  Commissioners  of  the  Stamp  Office,  which  placed  Hughes  in  a  very 
unfavorable  light  before  his  fellow  countrymen.  Hughes  declared  these 
letters  to  be  forgeries  and  brought  an  action  against  the  publishers,  Wm. 
Bradford  and  his  son  Thomas.  When  It  came  to  the  point  Hughes 
dropped  the  case,  but  It  furnished  the  Bradfords  with  an  opportunity 
which  they  did  not  fail  to  take  advantage  of.  Speaking  of  the  action, 
In  their  Issue  of  Sept.  i  ith,  1776,  they  say  It  Is  but  a  "  fresh  instance  of 
his  (Hughes)  regard  to  the  liberties  of  his  fellow-subjects.  In  his  impo- 
tent, but  111  natured  attempt  against  the  Liberty  of  the  Press."  .  .   . 

They  proceed  to  say: — "  His  suing  the  printers  of  the  Pennsylvania 
Journal,  for  printing  an  exact  copy  of  his  own  letters.  Is  no  more  than  an 
Ill-judged  effect  of  that  insatiable  passion,  which  he  has,  to  trample  upon 
the  most  sacred  rights  and  privileges  of  British  subjects  In  America.  The 
letters  themselves,  which  are  but  the  history  of  his  own  conduct  for  a 
considerable  time  past,  plainly  discover  how  heartily  and  passionately  he 
wished  for  the  favourable  opportunity  which  would  put  it  into  the  power 
of  this  excellent  patriot,  to  execute  the  detestable  STAMP  ACT,  which 
no  American  can  mention  without  abhorrence,  and  to  reduce  the  free- 
born  sons  of  Britain  to  a  most  wretched  state  of  slavery.  What  else  can 
be  the  meaning  of  his  barefaced  Falsehood,  In  representing  North 
America  In  a  state  of  absolute  rebellion  against  the  best  of  Kings,  and  in 
using  all  his  feeble  endeavors  to  excite  his  Majesty  and  his  ministers  to 
send  over  an  armed  force  to  quell  us,  as  he  modestly  terms  it?  But  such 
Is  his  Insensibility  to  all  the  dictates  of  Honour  or  Publick  Virtue,  that  to 
compleat  his  character  he  would  now  attempt  to  demolish  the  Liberty  of 
the  Press,  that  Invaluable  privilege  of  a  free  people;  because  through  that 
channel  his  hidden  arts  are  brought  to  light. 

'TIs  but  a  piece  of  justice  to  the  public,  to  let  them  know  his  last 
effort  to  prop  his  sinking  character,  which  has  long  labored  under  violent 


LIBERTY    OF    THE    PRESS  33 

suspicions.  He  procured  a  writ  for  the  printers  of  his  letters,  on  Satur- 
day last,  which  was  executed  by  the  Sheriff  on  Monday  morning  follow- 
ing; as  twelve  hundred  pounds  damages  were  marked  upon  the  writ,  the 
printers  sent  him  a  notice  about  tw^elve  o'clock,  to  appear  before  a 
Magistrate  to  shew  cause  of  action;  but  he  refused  to  appear.  At  4 
o'clock  the  same  afternoon  they  sent  him  another  notice,  to  appear  for 
the  same  purpose  at  10  o'clock  the  next  day,  and  informed  him,  that 
unless  he  appeared,  they  would  move  for  a  discharge  from  the  arrest. 
But  such  was  the  consciousness  of  his  guilt,  that  he  refused  again  to 
appear,  and  as  he  could  not  be  compelled  by  law  to  shew  cause  of  action, 
the  arrest  was  accordingly  discharged.  We  are  only  the  printers  of  a 
free  and  impartial  paper,  and  we  challenge  Mr.  Hughes  and  the  world, 
to  convict  us  of  partiality  in  this  respect,  or  of  even  an  inclination  to 
restrain  the  freedom  of  the  press  in  any  instance.  We  can  appeal  to 
North-America  not  only  for  our  impartiality  as  printers,  but  also  for  the 
very  great  advantages  derived  by  us  very  lately  from  the  unrestrained 
liberty,  which  every  Britain  claims  of  communicating  his  sentiments  to  the 
public  thro'  the  channel  of  the  press.  What  would  have  become  of  the 
liberties  of  the  British  in  North-America,  if  Mr.  Hughes  calls  on  Great 
Britain  had  been  heard,  to  restrain  the  printers  here  from  publishing 
what  he  is  pleased  to  stile  inflammatory  pieces,  and  if  every  prostitute 
scribbler,  and  enemy  to  his  country,  had  been  suffered  without  control 
from  the  pens  of  true  patriots,  to  ra-ck  their  distempered  brains,  to  find 
out  arguments  to  gull  a  free-born  people  into  a  tame  submission  to  per- 
petual slavery,  and  to  impose  their  flimsy  cobwebs  upon  us,  instead  of 
solid  and  substantial  reasoning?  To  the  freedom  of  the  press  in 
America,  we  may  in  a  great  measure  attribute  the  continuance  of  those 
Inherent  and  constitutional  privileges,  which  we  yet  enjoy  and  which  every 
Briton,  who  Is  not  enslaved  to  private  or  party  interests  prefers  to  his 
life.  We  cannot  therefore  doubt,  but  that  the  happiness,  which  now 
reigns  through  all  the  British  plantations,  will  inspire  every  friend  of 
his  country  with  an  honest  and  generous  Indignation  against  the  wretch 
that  would  attempt  to  enslave  his  countrymen  by  restraints  on  the  press." 
With  this  spirited  statement  we  end  the  struggle  for  the  Liberty  of 
the  Press  in  Pennsylvania.  It  is  not  composed  of  as  many  parts  as  that 
of  Massachusetts,  but  the  attitude  assumed  by  Bradford  at  the  first  is 
continued  by  his  successors,  and  the  press  of  Pennsylvania  ever  presented 
a  bold  and  unyielding  front  to  attacks  whether  they  proceeded  from 
Church  or  State. 


CHAPTER  IV 

THE    PRESS    IN    NEW    YORK 

THE  desire  to  have  a  printing  press,  on  which  laws  and  proclama- 
tions might  be  printed  for  the  information  of  the  people,  was  as 
strong  in  New  York  as  in  the  other  colonies  established  along  the 
Atlantic  coast,  but  unlike  the  general  attitude  assumed  by  colonial  govern- 
ments toward  the  press  we  find  in  New  York  that  the  head  of  the  colony 
was  the  person  chiefly  instrumental  in  its  establishment. 

Francis  Lovelace,  the  second  English  Governor  of  New  York,  when 
sending  to  Long  Island  some  books  printed  in  England  for  the  Indians, 
wrote:  "  I  am  not  out  of  hopes,  ere  long,  to  have  a  printer  here  of  my 
own;  having  already  sent  to  Boston  for  one;  but  whether  I  shall  speed 
or  no  is  uncertain."  ^ 

As  we  hear  no  more  of  the  matter  it  is  probable  that  the  inducements 
Lovelace  had  to  offer  did  not  suffice  to  tempt  the  Boston  printers.  It 
seems  that  in  this  matter  Lovelace  was  acting  in  his  own  initiative,  since 
we  find  the  attitude  of  the  home  government  in  the  matter  clearly  stated 
in  the  Instructions  issued  to  the  Governors.  In  1686  those  to  Governor 
Dongan  contain  the  following  clause:  "For  as  much  as  great  incon- 
venience may  arise  by  the  liberty  of  printmg  within  our  province  of  New 
York,  you  are  to  provide  by  all  necessary  orders,  that  no  person  keep  any 
press  for  printing;  nor  that  any  book,  pamphlet,  or  other  matters  what- 
soever, be  printed — without  your  special  leave  and  license  first  obtained."^ 
This  clause  appears  in  Instruction  after  Instruction  given  to  the  succeed- 
ing Governors,  e.  g.  to  Andros,'^  to  Fletcher,^  Sloughter,-^'  to  Bellomont,*^ 
and  to  Hunter.'^ 

The  accession  of  William  and  Mary  brought  with  it  a  certain 
increase  in  the  amount  of  personal  liberty  enjoyed  by  the  people,  and  the 

1  Orders,  Warrants,  Letters  &c..  Vol.  II,   N.  Y.,  at  Albany,  quoted  in   Wallace,  Bradford 
Centenary,  p.  60. 

2  Doc.  Rel.  to  Col.  Hist,  of  N.  Y.,  Vol.  HI,  p.  375. 

3  Doc.  Rel.  Col.  Hist.  N.  Y.,  Ill,  548. 

4  Same,  III,  824. 

5  Same,  HI,  691. 

6  Same,  IV,  290. 

7  Same,  V,  142. 

34 


LIBERTY    OF    THE    PRESS  35 

ideas  now  prevalent  show  themselves  in  the  position  assumed  by  the  new 
Governor,  Benjamin  Fletcher,  toward  the  printing  press.  It  will  be 
remembered  that  in  1692  Governor  Fletcher,  while  In  Philadelphia,  had 
ordered  on  petition  of  Wm.  Bradford  that  his  press  and  tools  of  trade 
(which  had  been  seized  by  the  sheriff  in  the  case  in  regard  to  the  printed 
address  written  by  George  Keith),  should  be  restored,  and  It  may  be 
conjectured  that  it  was  at  this  time  that  Governor  Fletcher  conceived  the 
idea  of  bringing  Bradford  to  New  York. 

In  the  Minutes  of  the  Legislative  Council  of  New  York  for  Mar. 
23,  1693-4  occurs  the  following  resolution:  "  If  a  Printer  will  come  and 
settle  in  the  City  of  New  York  for  the  printing  of  our  Acts  of  Assembly 
and  Publick  Papers,  he  shall  be  allowed  the  sum  of  £40  current  money 
of  New  York  per  annum  for  his  salary  and  have  the  benefit  of  his  print- 
ing, besides  what  serves  the  publick." 

This  invitation  Bradford  accepted,  and  on  his  arrival  In  New  York 
was  appointed  Royal  Printer  on  April  loth,  and  we  find  his  name  included 
among  the  officers  of  the  Crown, ^  in  a  list  of  April  20,  1693.  That  a 
new  interest  In  the  carrying  on  of  the  government  is  being  awakened 
among  the  people  and  that  the  legislative  body  is  cognizant  of  it  Is  evi- 
denced from  the  Order  passed  In  the  Legislative  Council  on  Oct.  20, 1694. 
"  Ordered  that  Coll  Steph  Cortlandt,  Coll  Nich  Bayard,  Chldley  Brooke 
Esqr,  Wm.  NIcholl  Esqr.  and  William  PInhorn  Esqr.  be  a  Committee  of 
this  board  to  consider  what  papers  and  messages  passed  between  his 
Excell.  and  Council  and  Assembly  this  sessions  are  propper  to  be  printed 
and  published  for  the  satisfaccon  of  the  people."  No  report  Is  received 
from  the  Committee  and  as  the  session  ended  a  few  days  later,  the  matter 
seems  for  the  time  to  have  been  dropped. 

In  the  next  session  there  is  a  further  advance.  Governor  Fletcher 
and  his  Assembly  had  become  involved  In  a  dispute  in  regard  to  the 
Muster  Rolls  and  the  pay  for  the  men  serving  on  the  frontier  against  the 
Indians.  The  stages  by  which  the  demana  for  publicity  made  by  the 
Assembly  advanced  are  shown  In  the  following  extracts : 

"  General  Assembly.     Apr.   12,   1695.     A.  M. 

"  Ordered,  That  this  House  do  address  his  Excellency  for  leave  to 
print  the  Journal  of  this  House  this  Sessions;  and  that  the  Clerk  of  this 
House  do   acquaint  the   Printer  therewith;   and  that   Capt.   Fllkin   and 
Capt.  Rensselaer  do  wait  upon  his  Excellency  with  this  address." 
8  Doc.  Rel.  Col.  Hist.  N.  Y.,  IV,  760. 


36  LIBERTY    OF    THE    PRESS 

"  General  Assembly — Apr.  13,  1695 — A.  M. 

Ordered,  That  the  Speaker  of  this  House  take  care  of  the  Minutes 
of  this  House,  and  endeavor  to  get  them  printed." 

Replying  to  these  resolutions  Governor  Fletcher  in  his  address  to 
the  Assembly  says,®  "You  now  desire  license  to  print  the  Votes.  Mr. 
Speaker  knows  at  the  opening  of  the  sessions,  if  I  may  call  it  one,  I  told 
him  they  might  be  printed  de  die  in  diem;  but  it  never  was  asked  before." 

On  June  22d,  1695  the  Assembly  follow  up  this  permission  by  the 
following : 

"  Ordered,  That  his  Excellency  be  addressed  to  order  the  Printer  to 
print  the  Daily  Votes  of  this  House  at  the  publick  charge;  and  that  Mr. 
Read  and  Mr.  Sebring  do  wait  upon  his  Excellency  with  the  said  address. 

"  Mr.  Read  and  Mr.  Sebring,  returned  from  his  Excellency  and 
reported  that  his  Excellency  is  very  willing  the  daily  Votes  of  this  House, 
should  be  printed  at  the  public  Charge,  but  hopes  that  the  House  (before 
the  end  of  the  Session),  will  allow  the  Printer  something  of  farther 
encouragement  than  that  already  established." 

"  Ordered,  That  the  Votes  of  this  House  be  daily  Printed  and  that 
the  Speaker  Issue  out  his  warrant,  to  the  King's  Printer,  to  print  the 
same,  at  the  public  Charge  accordingly." 

In  the  Minutes  of  July  3d,  1695  we  read: 

"  The  House  of  Representatives,  now  convened  in  General  Assem- 
bly address  his  Excellency  and  Council,  and  pray  that  they  will  allow, 
unto  William  Bradford,  his  Majesty's  Printer  for  this  Province,  the 
yearly  salary  of  Twenty  Pounds,  current  money  of  this  Province,  over 
and  above  the  salary  already  allowed  him,  by  his  Excellency  and  Council." 

Next  day  the  Council  took  action;''^ 

"  His  Excell.  did  order  the  reading  of  an  Address  from  the  Assem- 
bly, wherein  they  desire  an  addition  of  Twenty  Pounds  per  annum  to 
the  salary  of  the  printer." 

In  1698  the  Earl  of  Bellomont  succeeded  Col.  Fletcher  as  Governor 
and  the  attitude  of  the  government  toward  the  press  became  much  more 
stern.  But  after  the  coming  of  Lord  Cornbury  as  Governor,  Bradford 
resumed  to  a  great  extent  his  former  relations  with  the  government  and 
during  his  life  so  ordered  his  actions  as  to  become  involved  in  no  trouble. 
Of  him  Wallace  in  ending  his  Address  at  the  Bradford  Centenary  said 

9  Apr.  13,  1695,  Minutes  Legislative  Council. 
10  Minutes,  Legislative  Council,  4  July,  1695. 


LIBERTY    OF    THE    PRESS  37 

"  Bradford,  we  know  first  planted  the  printing  press  in  these  regions. 
He  first  maintained  (in  Philadelphia)  it  rights  against  arbitrary  power. 
.  .  .  What  liberty  was  it  the  printer  exercised,  of  old?  His  was  a  virtu- 
ous liberty.  .  .  .  He  worshipped  Freedom,  but  he  never  thought  of 
Freedom  as  dissociated  with  Government.  Freedom  and  Government; 
Government  and  Freedom ;  complemental ;  never  to  be  parted.  In  his 
long  and  active  life,  passed  in  many  regions  and  where  divers  rules 
prevailed,  it  was  his  fortune  to  be  sometimes  in  opposition  to  the  ruling 
powers,  and  sometimes  their  trusted  advocate.  But  In  opposing  admin- 
istrations he  respected  the  principles  of  government.  In  devotion  to 
place,  he  never  suffered  violence  to  the  spirit  of  Liberty." 

During  the  administration  of  Lord  Bellomont  the  Interests  of 
Leisler's  faction  In  the  province  were  in  the  ascendant,  and  those  who 
were  of  the  aristocratic  party  were,  as  far  as  possible  displaced  from 
positions  of  trust  and  honor.  Of  this  latter  party  one  of  the  most 
prominent  was  Col.  Nicholas  Bayard,  a  member  of  the  Council  and  a 
large  landowner.  Him  Lord  Bellomont  removed  from  the  Council,  the 
ground  for  this  action  being  that  "  he  had  advised  the  printing  of  a 
scandalous  and  malitious  pamphlet  entitled  '  A  Letter  from  a  Gentleman 
In  Boston,'  casting  odium  on  Leisler."  ^^  On  Lord  Bellomont's  death 
Lieutenant  Governor  Nanfan  assumed  the  government.  He  was  under 
the  Influence  of  the  Leislerian  party,  and  it  was  therefore  with  much 
delight  that  Bayard  and  his  friends  heard  that  the  King  had  appointed 
Lord  Cornbury  to  succeed  Lord  Bellomont.  Addresses  were  accord- 
ingly sent  by  them  to  the  King,  the  Parliament,  and  Lord  Cornbury.  In 
the  addresses  there  were  reflections  on  Lord  Bellomont  and  Nanfan,  the 
latter  being  accused  of  resorting  to  bribery  to  have  measures  passed. 
On  Jan.  i6,  1701-2  the  Lieutenant  Governor  and  CouncIP^  ordered 
Alderman  Hutchlns  (in  whose  custody  the  Addresses  were)  to  attend 
and  deliver  them.  On  refusal  he  was  committed  to  prison,  bail  being 
refused. 

Advantage  was  taken  by  Nanfan  and  his  friends  of  certain  state- 
ments in  these  petitions,  and  based  on  a  very  loose  paragraph  (in  an  Act 
drawn  up  by  Bayard  himself  and  passed  by  the  Assembly  In  1691),  stat- 
ing that  "  whatsoever  person  or  persons  shall  by  any  manner  of  way  or 
upon  any  pretense  whatever  endeavor  by  force  of  arms  or  other  ways  to 
disturb  the  peace,  good  and  quiet  of  their  Majesties'  government,  shall  be 

11  Dunlap,  Hist.  N.  Y.,  I,  239. 

12  Minutes  of  Council  of  that  date,  and  Howell  State  Trials,  XIV,  p.  473. 


38  LIBERTY    OF    THE    PRESS 

deemed  and  esteemed  as  rebels  and  traitors  unto  their  Majesties  and 
incur  the  pains,  penalties,  and  forfeitures  as  the  laws  of  England  have  for 
such  offenses  made  and  provided,"  Bayard  was  then  committed  to  prison 
as  a  traitor.  The  trial  which  followed  is  given  in  Howell's  State  Trials, 
Vol.  XIV. 

The  Attorney  General,  Broughton,  did  not  appear  in  the  case,  hav- 
ing given  an  opinion  in  favor  of  the  accused  when  called  upon  by  Lieu- 
tenant Governor  Nanfan.  The  indictment  (which  was  objected  to  as 
being,  first,  brought  in  by  a  Grand  Jury  not  entirely  composed  of  citizens, 
and  secondly,  as  not  having  been  signed  by  the  twelve  members  of  the 
jury),  recites  that,  "He,  Nicholas  Bayard,  by  conspiring  as  aforesaid 
.  .  .  did  use  divers  indirect  practices  and  endeavors,  to  procure  mutiny 
and  desertion  among  the  soldiers  in  pay,  belonging  to  his  Majesty's  fort 
and  garrison  of  Fort  William  Henry,  in  or  near  the  said  city  and  county 
of  New  York  aforesaid,  and  did  draw  in  numbers  of  them,  the  said 
soldiers  and  others,  to  sign  false  and  scandalous  libels  against  his 
Majesty's  said  government  as  it  is  now,  and  hath  for  several  years  last 
past  been  established  in  this  province;  which  said  libels,  by  the  procure- 
ment of  the  said  Nicholas  Bayard  as  aforesaid,  were  signed  by  the  said 
soldiers  and  others,  and  were  likewise  signed  by  him,  the  said  Nicholas 
Bayard;  in  one  or  more  of  which  said  libels,  among  other  things  highly 
reflecting  on  the  past  and  present  administration  of  the  government  under 
his  Majesty  in  this  province,  it  is  insinuated  and  declared,  that  his 
Majesty's  subjects  in  this  province  are,  and  have  been  for  some  years 
last  past,  by  persons  entrusted  with  the  administration  of  the  said  govern- 
ment under  his  Majesty,  oppressed;  and  that  the  said  government  hath 
been,  and  is  rendered  cheap  and  vile  in  the  eyes  of  the  people,  and  also 
that  the  present  General  Assembly  of  this  province  is  not  a  lawful 
assembly." 

The  defense  strongly  asserted  the  right  of  petitioning  the  King, 
holding  that  in  no  other  way  could  a  subject  in  the  colonies  oppressed 
by  those  in  power  obtain  justice,  and  that  treason  consisted  only  in  those 
things  defined  in  25  Ed.  Ill,  wherein  no  mention  of  such  an  act  as  charged 
against  Col.  Bayard  is  made. 

After  admitting  the  writing  of  the  Address,  the  defense  brought 
forward  for  the  first  time  the  argument  that  in  a  case  of  libel  the  jury 
are  judges  of  the  law  as  well  as  of  the  fact, — a  most  important  principle, 
to  be  reiterated  later  in  the  Zenger  case  and  finally  established  in  Eng- 


LIBERTY    OF    THE    PRESS  39 

land  in  the  Fox  case.     In  making  this  point  Mr.  Emot,  as  counsel  for  the 
defendant,  said: 

"  I  had  almost  forgot  to  beg  leave  of  the  Court  to  apply  myself  to 
the  gentlemen  of  the  jury,  to  obviate  some  objections,  or  rather  a  vulgar 
error,  that  usually  hath  crept  in  amongst  them  on  trials,  and  particularly 
upon  indictments :  which  is,  they  do  believe. 

That  if  the  matters  of  fact  alleged  in  the  indictment  be  but  proved, 
they  are  to  have  no  regard  for  matters  of  law;  which  I  take  to  be  a  very 
great  and  dangerous  error  in  them. 

For  though  it  be  true  and  must  be  granted,  that  matters  of  fact  are 
the  most  common  and  proper  objects  of  the  jury's  determination,  and 
matters  of  law  that  of  the  judges;  yet  as  the  law  ariseth  out  of,  and  is 
interwoven  and  complicated  with  fact,  it  cannot  but  fall  under  the  jury's 
consideration." 

It  is  also  interesting  to  note  that  we  have  here  a  prisoner  on  trial 
for  felony  allowed  counsel,  being  a  century  before  the  privilege  was 
allowed  in  England.  The  prisoner  was  found  guilty,  as  charged  in  the 
indictment,  of  rebellion  and  treason,  and  as  having  procured  the  signing 
of  libels  against  the  government.  The  arrival  of  Lord  Cornbury 
released  Bayard  and  later  an  order  of  the  Privy  Council  declared  the 
whole  proceedings  illegal  and  void.  Wm.  Atwood  who  presided  at  the 
trial  as  Chief  Justice  fled  from  the  colony  and  eventually  reached  Eng- 
land. In  1703  a  Joint  Committee  was  appointed  by  the  Legislative 
Council  and  General  Assembly  ^'^  "  to  consider  a  Print  or  papers  brought 
into  the  colony  from  Boston  in  the  case  of  Wm.  Atwood."  As  no 
further  record  in  regard  to  the  matter  is  found,  it  may  be  supposed  that 
the  matter  was  not  considered  of  sufficient  importance  to  merit  further 
notice." 

In  1693  Saml.  Mulford  was  a  Justice  in  Suffolk  county.^^  He 
seems  to  have  had  a  peculiar  faculty  for  embroiling  himself  with  the 
government,  being  in  a  chronic  state  of  opposition  to  any  and  every 
measure  proposed.  From  1705  to  1720  he  was  a  representative  in  the 
General  Assembly  from  the  county  of  Suffolk,  and  took  an  active  part  in 
the  quarrel  over  the  rights  of  the  Crown  in  the  whale  fisheries  off  the 
coast  of  Long  Island.     He  was  ultimately  arrested  for  "  trover  for  con- 

13  Minutes,  General  Assembly,  May  14,  1703. 

14  On  Atwood,  vide  C.  P.  Daly  in  "  Green  Bag"  for  Mar.  Apr.  and  May,  1895. 

15  Doc.  Rel.  Col.  Hist,  of  N.  Y.,  IV,  27. 


l/ 


40  LIBERTY   OF    THE    PRESS 

verting  the  Queen's  goods  to  his  own  use  "  in  refusing  to  pay  the  tax  of 
one-tenth,  and  judgment  was  given  against  him. 

On  April  2d,  17 14,  shortly  after  the  opening  of  the  third  session  of 
the  Fifteenth  Assembly  he  made  a  speech  (of  which  no  record  is  found 
in  the  Minutes  of  the  Assembly)  "  putting  them  in  mind,"  as  he  tells  us  ^^ 
"  of  some  ill  measures  I  was  informed  were  taken,  and  to  set  things  in 
their  true  light,  that  justice  might  be  done  among  us.  There  was  a  Dis- 
course of  having  it  printed,  but  the  question  was  not  put;  however  a 
Copy  was  desired  and  taken,  which  was  printed." 

This  speech  was  printed,  apparently  with  the  approval  of  the  mem- 
bers of  the  Assembly  for  no  action  was  taken  by  the  body.  But  when 
the  Sixteenth  Assembly  came  together  we  find  the  following  in  the 
Minutes  of  June  2,  1715  : 

"  A  Motion  was  made  that  Capt.  Mulford  give  his  reasons  to  this 
House,  why  he  printed  a  Speech,  formerly  by  him  made  to  the  General 
Assembly  of  the  Province,  without  leave  of  the  House. 

A  Motion  was  made  and  the  Question  being  put.  That  Capt.  Mul- 
ford give  an  account  now?     It  was  carried  in  the  affirmative. 

Capt.  Mulford  being  desired  by  Mr.  Speaker  to  give  his  Reasons 
why  he  printed  his  said  Speech,  proceeded  to  offer  his  Reasons  and  then 
withdrew. 

Then  the  House  proceeded  to  take  the  same  into  consideration. 

A  Motion  was  made.  That  Capt.  Mulford  be  expelled  this  House 
for  printing  a  Speech,  formerly  made  to  the  General  Assembly,  without 
leave  of  the  House,  in  which  are  many  false  and  scandalous  Reflections 
upon  the  Governor  of  the  Province.      It  was  carried  in  the  Affirmative. 

Ordered,  That  Capt.  Mulford  be  expelled  from  the  House  for  the 
said  offense." 

On  the  9th  of  June  the  Speaker  issued  his  Warrant  for  the  election 
of  a  member  from  Suffolk  to  take  Capt.  Mulford's  place,  but  no  action 
ensued  as  the  Assembly  was  prorogued  on  July  21st  and  dissolved  a 
month  later. 

Meanwhile  an  indictment  charging  Mulford  with  "  a  High  Mis- 
is  Original  document  quoted  in  Ross.  Hist,  of  Long  Island,  I,  p.  731. 


LIBERTY   OF   THE    PRESS  4 1 

demeanor,  acting  contrary  to  his  duty  of  Allegiance,  in  manifest  Con- 
tempt of  his  Majesty,  and  the  Governor  of  these  Provinces,  etc.,  had 
been  lodged  with  the  Grand  Jury  which,  however,  indorsed  it,  "  Igno- 
ramus." An  information  was  then  lodged  by  the  Attorney  General  and 
on  that  he  was  tried  in  the  Supreme  Court.  His  plea  of  privilege  of  the 
House  was  overruled  and  the  case  carried  from  term  to  term  without  a 
decision  being  rendered. 

When  the  Seventeenth  Assembly  came  together  on  July  5,  17 16, 
Capt.  Mulford  was  again  returned  as  a  member  from  Suffolk.  On  June 
16,  he  set  forth  his  case  to  the  House,  and  the  following  record  appears 
in  the  Minutes. 

"  A  motion  was  made,  and  the  Question  was  put.  That  Capt.  Mul- 
ford put  the  Speech  he  made  this  Day  in  the  House,  into  the  Hands  of  the 
Clerk  of  this  House. 

It  was  carried  in  the  Affirmative. 

The  matter  excited  so  much  attention  that  the  Assembly  finally  drew 
up  an  address  to  the  Governor,  Robert  Hunter. 

"  To  His  Excellency  the  Governor." 
"  The  Humble  Address  of  the  General  Assembly  of  New  York." 

"  May  it  Please  your  Excellency. 

The  Assembly  being  deeply  sensible  of  the  Damage  and  Incon- 
veniency  Mr,  Samuel  Mulford,  A  Member  of  this  House,  suffers  and 
undergoes,  by  occasion  of  a  Prosecution  against  him  in  the  Supream 
Court,  for  Printing  and  Publishing  a  Speech,  formerly  made  by  him  in 
Assembly;  are  humble  suitors  to  your  Excellency,  to  give  Orders  that 
Mr.  Mulford,  in  regard  to  his  great  Age,  distance  of  habitation  from 
this  City,  and  other  considerations,  may  be  freed  and  discharged  from 
the  said  prosecution  in  the  Supream  Court. 

To  this  the  Governor  replied  :^'^ 

"  Although  the  Gentleman  named  in  the  Address  lay  under  a  Pro- 
secution, not  for  a  Speech  made  in  their  House,  But  for  Publishing  and 
dispersing  a  false  and  Malitious  Libel,  against  the  Government,  (for  So 
it  was  Termed  by  the  House  of  Representatives)  tending  to  alienate  the 
affections  of  the  Subjects  from  the  Government,  and  raising  groundless 

17  Minutes,  Legislative  Council,  Aug.  2ist,   1716. 


42  LIBERTY    OF   THE    PRESS 

Jealowsies  in  the  minds  of  the  people  and  Indeed  it  had  in  some  measure 
had  that  effect.  Yet  to  show  them  what  regard  he  had,  and  ever  Should 
have  to  any  applications  made  to  him  by  that  House,  So  soon  as  Capt. 
Mulford  should  apply  to  him  in  a  DutifuU  manner  for  what  was  desired, 
for  as  yet  he  had  applied  in  no  manner  at  all,  he  would  comply  with  what 
they  had  desired  of  him,  and  without  that  he  believed  that  ne'er  a  one  of 
them  could  Expect  it." 

Mulford  refused  to  submit  and  went  to  England  where  he  presented 
his  case  so  ably  that  Governor  Hunter  was  ordered  by  the  Lords  of 
Trade  ^^  to  cease  all  proceedings  against  him. 

On  his  return  to  New  York  he  took  his  seat  in  the  House,  but  on 
Oct.  26,  1720,  was  once  more  expelled,  and  probably  on  account  of  age 
was  not  returned  when  the  new  Assembly  met  in  1726. 

In  1734  the  enmity  between  the  two  political  parties  in  the  Province, 
— the  aristocratic,  which  supported  Governor  Cosby  and  was  in  turn 
supported  by  him,  and  the  popular  party,  in  which  the  leaders  were  Wm. 
Smith  and  James  Alexander,  had  reached  a  point  where  little  could  be 
needed  to  introduce  open  violence.  The  Gazette,  published  by  Wm. 
Bradford,  was  at  this  time  a  staid  sheet,  claiming  to  be  neutral  in  party 
strife,  but  naturally  under  the  circumstances  leaning  to  the  side  of  the 
government.  To  offset  its  influence  the  New  York  Weekly  Journal  was 
■^  established  under  the  editorship  of  John  Peter  Zenger  in  the  interest  of 
the  popular  party.  Knowing  that  the  strength  of  the  party  must  lie  in 
the  support  of  the  people  and  that  this  support  could  be  given  effectively 
only  by  a  people  who  understood  the  issues  involved,  the  writers  for  the 
Journal  put  forward  the  most  liberal  views  in  regard  to  the  liberty  of  the 
press.  It  was  not  a  subject  which  many  at  that  time  understood  or  took 
any  interest  in;  but  the  effect  of  the  long  continued  campaign  of  articles 
was  to  spread  the  principle  not  only  in  the  province  of  New  York  but 
even  as  far  away  as  Charleston  where  the  matter  was  warmly  discussed. 

In  the  fall  of  1734  the  annual  election  of  aldermen  resulted  in  a 
triumph  for  the  popular  party.  The  court  party  turned  on  Zenger  for 
revenge,  and  the  Chief  Justice,  De  Lancey,  attempted  to  obtain  an  indict- 
t/  ment  against  Zenger  on  the  ground  that  he  was  provoking  the  citizens 
to  commit  acts  of  treason  against  the  government.  The  grand  jury 
having  refused  to  do  his  bidding,  the  Governor  next  turned  to  the  Gen- 

18  Doc.  Rel.  Col.  Hist.  N.  Y.,  Vol.  V,  p.  505. 


LIBERTY    OF   THE    PRESS  43 

eral  Assembly.  In  its  Minutes  for  Oct.  17th  we  find  the  following 
record : 

,  "  A  Message  from  the  Council  by  Philip  Cortlandt,  in  these  words, 
to  wit:  '  That  board  having  had  several  of  Zenger's  Weekly  Journals 
laid  before  them,  and  other  scurrilous  papers,  tending  to  alienate  the 
people  of  this  province  from  his  Majesty's  government,  to  raise  seditions 
and  tumults  among  the  people  of  this  province,  and  to  fill  their  minds 
with  a  contempt  of  his  Majesty's  government;  and  considering  the  per- 
nicious consequences  that  may  attend  such  growing  evils,  if  not  speedily 
and  effectively  put  a  stop  to :  And  conceiving  that  the  most  likely  method 
to  put  a  stop  to  such  bold  and  seditious  practices,  to  maintain  the  dignity 
of  his  Majesty's  government,  and  to  preserve  the  peace  thereof,  would  be 
by  a  Conference  between  a  Committee  of  this  board,  and  a  Committee 
of  the  Assembly;  it  is  therefore  ordered,  that  the  gentlemen  of  this  board, 
now  assembled,  or  any  seven  of  them,  be  a  Committee  to  join  a  Com- 
mittee of  the  House  of  Representatives,  in  order  to  confer  together,  and 
to  examine  and  enquire  into  the  said  papers,  and  the  authors  and  writers 
thereof.' 

Which  Message  being  read; 

Ordered;  That  the  Members  of  this  House,  or  any  fourteen  of 
them,  do  meet  a  Committee  of  the  Council,  at  the  time  and  place  therein 
mentioned." 

On  Oct.  1 8th  the  matter  again  is  taken  up: 

"Mr.  Gerritsen,  from  the  Committee  of  this  House,  reported.  That 
they  had,  last  Night,  met  the  Committee  of  the  Council,  on  the  subject 
Matter  of  their  Message  of  Yesterday,  to  this  House,  and  that  after 
several  Preliminaries  between  the  said  Committees,  the  Gentlemen  of  the 
Council  reduced  to  writing,  what  they  requested  of  this  House,  and 
delivered  the  same  to  the  Chairman,  who  delivered  it  at  the  Table;  and 
being  read,  is  in  the  Words  following: 

'  At  a  Committee  of  the  Council,  held  the  17th  of  October,  1734. 
Present 

Mr.  Clarke,  Mr.  Kennedy, 

Mr.  Harrison,  Mr.  Chief  Justice, 

Dr.   Colden,  Mr.  Cortlandt, 

Mr.  Livingston,  Mr.  Lane, 

Mr.  Horsmanden. 


44  LIBERTY    OF   THE    PRESS 

The  Matters  we  request  your  Concurrence  in,  are  that  Zenger's 
Papers,  No.  7,  47,  48,  49,  and  two  printed  Ballads,  which  were  read,  and 
which  we  now  deliver  to  be  burnt  by  the  Hands  of  the  common  Hang- 
man, as  containing  in  them  many  things  Derogatory  of  the  Dignity  of  his 
Majesty's  Government,  Reflections  upon  the  Legislature,  and  upon  the 
most  considerable  Persons  in  the  most  distinguished  Stations  in  this  Prov- 
\J  ince,  and  tending  to  raise  Sedition  and  Tumults  among  the  People 
thereof.  That  you  concur  with  us  in  addressing  the  Governor  to  issue 
his  Proclamation,  with  a  Promise  of  Reward,  for  the  Discovery  of  the 
Authors  or  Writers  of  these  seditious  Libels. 

That  you  concur  with  us  in  an  Order  for  prosecuting  the  Printer 
thereof. 

That  you  concur  with  us  in  an  Order  to  the  Magistrates,  to  exert 
themselves  in  the  execution  of  their  Oflices,  in  order  to  preserve  the 
public  Peace  of  the  Province. 

Per  Order  of  the  Committee. 

Frederick  Morris, 

Dep.  Col.  Council.' 

Mr.  Garritsen  delivered  likewise  to  the  House,  the  several  Papers 
referred  to  in  the  said  Request. 

Ordered,  That  the  said  Papers  be  lodged  with  the  Clerk  of  this 
House,  and  that  the  Consideration  thereof,  and  of  the  said  Request,  be 
referred  to  Tuesday  next." 

And  again  on  Oct.  22d: 

"  The  House,  (according  to  Order)  proceeded  to  take  into  Con- 
sideration, the  Request  of  a  Committee  of  the  Council,  delivered  to  a 
Committee  of  this  House,  on  the  i8th  instant;  as  likewise  of  the  several 
Papers  therein  referred  to,  and  after  several  Debates  upon  the  subject 
matter  thereof,  it  was, 

Ordered,  That  the  said  Request  and  Papers  lie  on  the  Table." 

The  Council,  finding  the  Assembly  would  take  no  action  in  the 
matter,  sent  the  following  message  to  the  House:  ''-* 

"  A  Message  from  the  Council,  by  Mr.  Livingston,  desiring  the 
House  to  return,  (by  him)  to  that  Board,  the  several  seditious  Journals 

19  Nov.  2,  1734,  Minutes  of  General  Assemblj'. 


LIBERTY    OF    THE    PRESS  45 

of  Zenger's,  No.  7,  47>  48,  49>  and  two  printed  Ballads,  which  were 
delivered  by  a  Committee  of  that  Board,  to  a  Committee  of  this  House, 
the  seventeenth  of  October  last,  together  with  the  Proposals  of  the  Com- 
mittee of  that  Board,  delivered  therewith,  to  a  Committee  of  this  House; 
and  then  he  withdrew. 

Ordered,  That  the  Clerk  of  this  House,  produce  the  said  Papers; 
then  Mr.  Livingston  being  called  in,  Mr.  Speaker  delivered  to  him  all 
the  said  Papers  and  Proposals,  accordingly,  and  then  he  withdrew." 

The  next  extract  is  from  the  Minutes  of  the  Legislative  Council  for 
Nov.  2d,  1734- 

"  In  pursuance  of  an  Order  of  this  Board  of  the  17th  of  October 
last,  a  Committee  of  this  Board  having  met  a  Committee  of  the  House  of 
Representatives  ...  but  the  Board,  finding  by  a  Journal  of  the  Votes 
of  that  House,  that  the  matters  proposed  to  their  Committee  were 
ordered  to  lye  on  the  table,  and  conceiving  it  highly  necessary  to  give  a 
Check  to  such  virulent  and  seditious  Libells,  as  are  dispersed  throughout 
Zenger's  Journal  to  maintain  the  dignity  of  his  Majesty's  Government, 
and  to  preserve  the  peace  thereof,  they  therefore  resolved  mto  a  Com- 
mittee to  consider  of  the  same.     On  which  his  Excellency  withdrew. 

The  Committee  having  duely  weighed  and  considered  the  same,  and 
finding  that  the  whole  tenour  of  most  (if  not  all)  of  those  papers  now 
under  their  consideration,  and  particularly  those  Journalls  entitled  "  The 
New  York  Weekly  Journall,  Containing  the  Freshest  advices  foreign 
and  domestick,"  printed  by  said  Zenger  and  numbered  7,  47'  4B,  49^ 
have  a  direct  tendency  to  raise  Sedition  and  Tumults  among  the  people 
of  this  Province,  to  inflame  their  minds  with  a  Contempt  of  his  Majesty  s 
rightful  Government,  and  Just  prerogative,  and  disturb  the  peace  thereof, 
and  containing  in  them  likewise  not  only  reflections  upon  his  Excellency 
the  Governor  in  particular,  the  Legislature  in  general,  but  also  upon  the 
most  considerable  persons  In  the  most  distinguished  stations  in  this  prov- 
ince.    It  is  therefore  unanimously 

Resolved,  by  this  Committee  that  those  Journalls  of  Zenger  as 
above  mentioned  be  burnt  by  the  hands  of  the  common  hangman  or 
whipper  near  the  pillory  in  this  city  on  Wednesday  the  6th  instant, 
between  the  hours  of  Eleven  and  twelve  in  the  forenoon,  that  the  Sheriff 
be  ordered  to  see  it  effectually  done,  and  that  the  Mayor  and  other 
Magistrates  of  this  city  do  attend  at  the  burning  thereof. 


46  LIBERTY    OF    THE    PRESS 

That  his  Excellency  be  requested  to  issue  his  Proclamation  with  a 
-^reward  of  £50   for  the   discovery  of   the   author   or   authors   of   said 
Journalls. 

That  Zenger  the  printer  thereof  be  by  order  of  this  Board  taken 
Into  custody  by  the  Sheriff  and  Committed  to  prison. 

That  an  Order  of  this  Board  be  sent  to  the  Magistrates  of  the 
respective  Countys  within  this  province  diligently  to  exert  themselves 
in  the  execution  of  their  respective  offices  in  order  to  preserve  the  publick 
peace. 

And  on  the  Chief  Justice  withdrawing  it  is  further 

Resolved,  that  an  Order  of  the  Board  be  sent  to  the  Attorney 
General  to  prosecute  the  printer  and  Author  or  Authors  thereof  when 
discovered. 

His  Excellency  returning  to  the  Council  Chamber  the  above  resolu- 
tions were  read  and  reported  at  the  Board  by  Mr.  Clarke,  Chairman  of 
the  Committee,  and 

On  the  Question  being  put,  the  same  was  unanimously  agreed  to  and 
approved  of  by  this  Board." 

The  Mayor  and  Magistrates  refused  either  to  attend  the  burning 
or  to  allow  the  hangman  to  be  present,  and  accordingly  the  work  was 
done  by  a  negro  servant  of  the  Sheriff  while  a  small  group  from  the 
f/court  party  looked  on.  Zenger  was  then  arrested,  and  after  being 
released  on  excessive  bail,  and  the  grand  jury  having  refused  to  find  a 
bill,  he  was  finally  brought  to  trial,  on  an  Information  of  the  Attorney 
General,  for  printing  arid  publishing  parts  of  the  Journals  Nos.  13  and 
23,  as  being  false,  scandalous,  malitious  and  seditious.  The  passages 
specificately  objected  to  were  the  following;  the  first,  in  No.  13; — "  Your 
appearance  in  print,  at  last,  gives  a  pleasure  to  many,  though  most  wish 
you  had  come  fairly  into  the  open  field,  and  not  appeared  behind  retrench- 
ments made  of  the  supposed  laws  against  libelling,  and  of  what  other 
men  have  said  and  done  before.  These  retrenchments,  gentlemen,  may 
soon  be  shown  to  you,  and  all  men,  to  be  weak,  and  to  have  neither  law 
nor  reason  for  their  foundation,  so  cannot  long  stand  you  in  stead; 
Therefore  you  had  much  better  as  yet  leave  them,  and  come  to  what  the 
people  of  this  city  and  province  think  are  the  points  in  question ;  they 
think,  as  matters  now  stand,  that  their  liberties  and  properties  are  pre- 


LIBERTY    OF    THE    PRESS  47 

carious,  and  that  slavery  Is  like  to  be  entailed  upon  them  and  their  poster- 
ity, if  some  past  thing  be  not  amended;  and  this  they  collect  from  many 
past  proceedings;  "  and  the  second  in  No.  23  ; — "  One  of  our  neighbors," 
(from  New  Jersey)  "  being  in  company,  observing  the  strangers  "  (from 
New  York) ,  "  full  of  complaints,  endeavored  to  persuade  them  to  remove 
into  New  Jersey;  to  which  it  was  replied,  That  would  be  leaping  out  of 
the  frying-pan  into  the  fire;  for,  says  he,  we  both  are  under  the  same 
governor,  and  your  assembly  have  shewn  with  a  witness  what  is  to  be 
expected  from  them;  one  that  was  then  moving  to  Pennsylvania,  to  which 
place  it  is  reported  several  considerable  men  are  removing,  expressed  in 
terms  very  moving,  much  concern  for  the  circumstances  of  New  York, 
seemed  to  think  them  very  much  owing  to  the  influence  that  some  men 
had  in  the  administration,  said  he  was  now  going  from  them,  and  was 
not  to  be  hurt  by  any  measures  they  should  take,  but  could  not  help  hav- 
ing some  concern  for  the  welfare  of  his  countrymen,  and  should  be  glad 
to  hear  that  the  Assembly  would  exert  themselves  as  became  them,  by 
showing  that  they  have  the  interest  of  their  country  more  at  heart,  than 
the  gratification  of  any  private  view  of  any  of  their  members,  or  being  at 
all  affected  by  the  smiles  or  frowns  of  a  governor,  both  which  ought 
equally  to  be  despised,  when  the  interest  of  their  country  is  at  stake. 
You,  says  he,  complain  of  the  lawyers,  but  I  think  the  law  itself  is  at  an 
end.  We  see  men's  deeds  destroyed,  judges  arbitrarily  displaced,  new 
courts  erected  without  consent  of  the  legislature,  by  which  it  seems  to 
me,  trials  by  jury  are  taken  away  when  a  governor  pleases,  men  of  known 
estates  denied  their  votes,  contrary  to  the  received  practice,  the  best 
exposition  of  any  law ;  Who  is  then  in  that  province  that  can  call  anything 
his  own,  or  enjoy  any  liberty,  longer  than  those  in  the  administration  will 
condescend  to  let  them  do  it,  for  which  reason  I  have  left  it,  as  I  believe 
more  will." 

James  Alexander  and  Wm.  Smith,  the  lawyers  defending  Zenger, 
were  disbarred  by  Chief  Justice  De  Lancey  for  questioning  the  legality 
of  the  commission  of  the  court,  and  it  was  thought  that  Zenger  must  be 
y  convicted  since  there  was  no  one  in  the  province  of  equal  ability  to  defend 
'  him.  But  Andrew  Hamilton,  the  most  famous  lawyer  of  the  times  in 
Pennsylvania,  was  summoned  from  Philadelphia  and  took  charge  of  the 
case.  He  began  by  admitting  the  fact  of  publication:  "  I  cannot  think 
it  proper  for  me,"  he  said,  "(without  doing  violence  to  my  own  prin- 
ciples), to  deny  the  publication  of  a  complaint,  which,  I  think,  is  the  right 
of  every  free  born  citizen  to  make,  when  the  matters  so  published  can  be 


48  LIBERTY    OF    THE    PRESS 

supported  with  truth."  But  when  the  Attorney  General,  at  this  admis- 
sion, called  at  once  for  a  conviction,  Hamilton  replied,  "  Not  so,  neither, 
Mr.  Attorney,  you  have  something  more  to  do;  the  words  must  be  proved 
libellous,  that  is,  false,  scandalous,  and  seditious,  or  else  they  are  not 
guilty." 

The  scene  that  ensued  was  a  remarkable  one.  On  one  side  were 
the  Chief  Justice  and  the  Attorney  General,  taking  the  position  that  the 
only  question  before  the  jury  was  the  fact  of  publication;  and  that  the 
/maxim  "  The  greater  the  truth  the  greater  the  libel  "  held,  the  defendant 
not  being  permitted  to  give  the  truth  of  the  libel,  in  evidence: — on  the 
other  side  was  Hamilton,  arguing  that  the  Star  Chamber  practice  had  died 
with  the  Star  Chamber,  and  that  the  jury  had  the  right  to  determine 
both  the  law  and  the  fact.  Speaking  of  the  position  in  which  men  were 
placed  when  wronged  by  those  in  authority,  he  said, 

"  It  is  natural,  it  is  a  privilege, — I  will  go  farther,  it  is  a  right  which 
all  free  men  claim,  and  are  entitled  to,  to  complain  when  they  are  hurt; 
they  have  a  right  publicly  to  remonstrate  against  the  abuses  of  power,  in 
the  strongest  terms,  to  put  their  neighbors  upon  their  guard  against  the 
craft  or  open  violence  of  men  in  authority,  and  to  assert  with  courage  the 
sense  they  have  of  the  blessings  of  liberty,  the  value  they  put  upon  it,  and 
their  resolution  at  all  hazards  to  preserve  it,   as  one  of  the  greatest 

blessings  heaven  can  bestow I  beg  leave  to  insist  that  the 

right  of  complaining  or  remonstrating  is  natural;  and  the  restraint  upon 
this  natural  right  is  the  law  only,  and  that  those  restraints  can  only  extend 

to  what  is  false Truth  ought  to  govern  the  whole  affair 

of  libels." 

He  then  went  on  to  show  how  difficult  it  was  to  determine  precisely 
what  a  libel  was,  and  in  exactly  what  it  consisted,  illustrating  his  remarks 
from  different  periods  of  English  history  to  prove  how  ideas  had 
changed,  and  after  dwelling  on  the  danger  of  lodging  an  excess  of  power 
in  any  man,  as  in  giving  a  judge  on  the  bench  the  right  to  determine  the 
law  in  a  libel  case,  he  added, 

"  Power  may  justly  be  compared  to  a  great  river;  while  kept  within 
its  due  bounds,  it  is  both  beautiful  and  useful;  but  when  it  overflows  its 
banks,  it  is  then  too  impetuous  to  be  stemmed;  it  bears  down  all  before 
it,  and  brings  destruction  and  desolation  wherever  it  goes.  If  then  this 
Is  the  nature  of  power,  let  us  at  least  do  our  duty,  and  like  wise  men, 


LIBERTY    OF    THE    PRESS  49 

(who  value  freedom,)  use  our  utmost  care  to  support  liberty,  the  only 
bulwark  against  lawless  power,  which,  in  all  ages,  has  sacrificed  to  its 
wild  lust  and  boundless  ambition,  the  blood  of  the  best  men  that  ever 
lived. 

"I  hope  to  be  pardoned.  Sir,  for  my  zeal  upon  this  occasion: 
it  is  an  old  and  wise  caution,  '  That  when  our  neighbor's  house  is  on  fire, 
we  ought  to  take  care  of  our  own.'  For  though,  blessed  be  God,  I  live 
in  a  government  where  liberty  is  well  understood,  and  freely  enjoyed; 
yet  experience  has  shown  us  all,  (I'm  sure  it  has  to  me,)  that  a  bad  prec- 
edent in  one  government  is  soon  set  up  for  an  authority  in  another;  and 
therefore  I  cannot  but  think  it  mine,  and  every  honest  man's  duty,  that, 
(while  we  pay  due  obedience  to  men  in  authority,)  we  ought  at  the  same 
time  to  be  on  our  guard  against  power,  wherever  we  apprehend  that  it 
may  affect  ourselves,  or  our  fellow-subjects. 

"  I  am  truly  unequal  to  such  an  undertaking,  on  many  accounts. 
And  you  see  I  labor  under  the  weight  of  many  years,  and  am  borne  down 
by  many  infirmaties  of  body;  yet  old  and  weak  as  T  am  I  should  think  it 
my  duty,  if  required,  to  go  to  the  utmost  part  of  the  land,  where  my  serv- 
ice could  be  of  any  use  in  assisting  to  quench  the  flame  of  prosecutions 
upon  informations  set  on  foot  by  the  government,  to  deprive  a  people  of 
the  right  of  remonstrating,  (and  complaining  too,)  of  the  arbitrary 
attempts  of  men  in  power.  Men  who  injure  and  oppress  the  people 
under  their  administration,  provoke  them  to  cry  out  and  complain,  and 
then  make  that  very  complaint  the  foundation  for  new  oppressions  and 
prosecutions.  I  wish  I  could  say  there  were  no  instances  of  this  kmd. 
But  to  conclude,  the  question  before  the  Court  and  you,  gentlemen  of  the 
jury,  is  not  of  small  or  private  concern;  it  is  not  the  cause  of  a  poor 
printer,  nor  of  New  York  alone,  which  you  are  trying.  No !  it  may,  m 
its  consequences,  affect  every  freeman  that  lives  under  a  British  govern- 
ment, on  the  main  of  America.  It  is  the  best  cause;  it  is  the  cause  of 
liberty;  and  I  make  no  doubt  but  your  upright  conduct,  this  day,  will 
not  only  entitle  you  to  the  love  and  esteem  of  your  fellow  citizens,  but 
every  man  who  prefers  freedom  to  a  life  of  slavery,  will  bless  and  honor 
you  as. men  who  have  baffled  the  attempts  of  tyranny;  and  by  an  impar- 
tial and  uncorrupt  verdict,  have  laid  a  noble  foundation  for  securing  to 
ourselves,  our  posterity,  and  our  neighbors,  that  to  which  nature  and  the 
laws  of  our  country  have  given  us  a  right— the  liberty— both  of  exposing 
and  opposing  arbitrary  power  in  those  parts  of  the  world  at  least,  by 
speaking  and  writing  truth."  (Rutherfurd,  John  Peter  Zenger,  p.  123.) 


50  LIBERTY    OF    THE    PRESS 

The  Chief  Justice  In  summing  up  said  that  as  the  facts  or  words  In 
the  Information  were  confessed,  the  only  thing  that  could  come  before 
the  jury  was  whether  the  words,  as  set  forth  in  the  Information,  made  a 
hbel;  "  and  that,"  he  said,  "  is  a  matter  of  law,  no  doubt,  and  which  you 
may  leave  to  the  Court." 

The  jury  remained  out  but  a  short  time,  and  then  returned  with  a 
verdict  of  "  Not  Guilty,"  a  result  which  was  hailed  with  exuberant  joy 
by  the  large  gathering  in  the  Hall.  Before  Hamilton's  return  to  Phila- 
delphia, the  Freedom  of  the  Corporation  was  presented  to  him  in  these 
words, 

"City  of  Nezv  York,  SS. 

"  Paul  Richards,  Esqr.  the  Recorder,  Aldermen  and  Assistants  of 
the  City  of  New  York,  convened  in  Common  Council,  to  all  to  whom 
these  presents  shall  come,  greeting.  Whereas  honor  is  the  true  reward 
of  virtue,  and  public  benefits  demand  a  public  acknowledgement;  We 
therefore,  under  a  grateful  sense  of  the  remarkable  service  done  to  the 
inhabitants  of  this  City  and  Colony  by  Andrew  Hamilton,  Esqr.  of 
Pennsylviana,  barrister  at  law,  by  his  learned  and  generous  defense  of 
the  rights  of  mankind,  and  the  liberty  of  the  press,  in  the  case  of  John 
Peter  Zenger,  lately  tried  on  an  Information  exhibited  in  the  Supreme 
Court  of  this  Colony,  do,  by  these  presents,  bear  to  the  said  Andrew 
Hamilton,  Esqr.  with  the  public  thanks  of  the  freemen  of  this  Corpora- 
tion for  that  signal  service,  which  he  cheerfully  undertook  under  great 
indisposition  of  body,  and  generously  performed,  refusing  any  fee  or 
reward;  and  in  testimony  of  our  great  esteem  for  his  person,  and  sense  of 
his  merit,  do  hereby  present  him  with  the  Freedom  of  this  Corporation. 
These  are  therefore  to  certify  and  declare,  that  the  said  Andrew  Hamil- 
ton, Esqr.  is  here  by  admitted,  received  and  allowed  a  freeman  and 
citizen  of  the  said  City;  to  have,  hold,  enjoy  and  partake  of  all  the 
benefits,  liberties,  privileges,  freedoms  and  immunities  whatsoever, 
granted  or  belonging  to  a  freeman  and  citizen  of  the  said  City. 

In  testimony  whereof,  the  Common  Council  of  the  said  City,  in 
Common  Council  assembled,  have  caused  the  seal  of  the  said  City  to  be 
hereunto  affixed,  this  29th  day  of  September,  A.  D.  1735. 

By  Order  of  the  Common  Council.  Wm.  Sharpas,  Clerk." 

In  September,  1743,  Governor  George  Clinton  arrived  from  Eng- 


LIBERTY    OF    THE    PRESS  5 1 

land.  Party  strife  had  not  disappeared  after  the  Zenger  trial, — in  fact  it 
had  become  intensified,  for  those  who  were  opposed  to  the  court  party  felt 
that  their  only  chance  to  gain  influence  and  power  was  through  continu- 
ing their  opposition  and  gradually  establishing  themselves  as  a  party 
striving  for  the  liberty  of  the  people  of  the  colony. 

At  the  same  time  the  court  party  became  involved  in  internal  dis- 
putes. By  1746  Governor  Clinton  had  transferred  his  confidence  from 
De  Lancey  to  Cadwallader  Colden,  and  in  Indian  matters  was  displaying 
great  incompetency,  refusing  to  take  the  advice  of  the  majority  of  his 
Council.  For  this  reason,  when  in  the  Summer  of  1746  he  made  a  trip 
to  Albany  to  treat  with  the  Iroquois,  (who  were  supposed  to  be  waver- 
ing in  their  allegiance  to  Great  Britain,)  the  members  of  the  Council, 
with  the  exception  of  Cadwallader  Colden  and  Philip  Livingston,  refused 
to  accompany  him. 

In  December  the  trouble  in  the  Council  became  known  to  the  public 
and  was  taken  up  at  the  Council  Board.  In  the  Minutes  of  the  Council 
for  Dec.  4th,  1746,  we  find  the  following:  "Mr.  Chief  Justice 
De  Lancey  took  notice.  That  as  the  business  of  this  Session  was  now 
compleated  he  had  something  to  offer  to  the  Council,  which  arose  from 
the  perusal  of  a  pamphlet  that  had  lately  fallen  into  his  hands  Entituled, 
'  A  Treaty  between  his  Excellency  and  the  Six  united  Indian  Nations 
depending  on  the  province  of  New  York,  held  at  Albany  in  the  months 
of  August  and  September,  1746,  (which  pamphlet  he  had  in  his  hands,) 
wherein  was  a  paragraph,  page  3,  in  the  words  following  viz, 

'  His  Excellency  the  Governor  of  New  York  having  received  his 
Majesty's  Commands  to  engage  the  Indian  Nations  depending  on  his 
Government  to  join  in  the  expedition  then  intended  against  Canada,  and 
to  make  them  the  usual  presents  on  that  occasion;  and  being  sensible  of 
the  great  use  these  Nations  may  be  to  the  success  of  this  Enterprize  and 
likewise  of  the  difl^culties  that  probably  might  attend  his  Endeavors  at 
this  time,  was  desirous  to  have  had  the  assistance  of  as  many  of  the 
members  of  his  Majesty's  Council  as  the  Circumstances  of  affairs  would 
admit;  but  they  all  declined  to  give  their  attendance  except  Mr.  Colden 
and  Mr.  Livingston.  His  Excellency  was  therefore  obliged  to  Act  with 
the  smallest  number  of  members  which  by  his  Majesty's  Commission  can 
form  a  Council,  viz.  Three;  The  above  two  Gentlemen  and  Capt.  Ruth- 
erford, who  was  then  at  his  post  in  Albany.' 


52  LIBERTY    OF    THE    PRESS 

Which  paragraph,  he  conceived,  did  contain  a  Misrepresentation  of 
Facts  and  an  invidious  reflection  upon  such  of  the  members  of  his 
Majesty's  Council  as  did  not  attend  his  Excellency  to  Albany." 

Chief  Justice  De  Lancey  then  went  on  to  say  that  he  moved  that 
the  Printer  might  be  sent  for  and  examined  to  find  out  who  had  given 
him  the  copy.  Upon  this  Mr.  Colden  admitted  having  given  the  copy 
and  after  some  attempts  at  equivocation  also  admitted  having  ordered 
its  publication,  and  that  he  was  the  author,  but  in  extenuation  of  his 
action  said  he  had  had  no  intention  of  reflecting  on  any  of  the  members 
of  the  Council. 

The  Council  then  proceeded  to  pass  a  vote  of  censure  on  the 
pamphlet,  and,  since  it  had  been  published,  ordered  the  proceedings  of 
the  Council  to  be  printed  for  the  information  of  the  people. 

It  is  interesting  in  this  case  to  note  that  the  Council  makes  no  threat 
of  proceeding  against  the  printer,  although  it  asserts  the  right  of  calling 
him  to  the  bar,  and  examining  him,  but  contents  itself  with  publishing 
a  justification  of  its  position,  ordering  it  to  be  disseminated  among  the 
inhabitants  of  the  province  by  means  of  the  printing-press.  It  seems  like 
an  unwilling  admission  of  the  fact  that  the  press  had  become  a  power  in 
the  land,  and  at  the  same  time  of  a  desire  to  use  it  to  win  the  Council's 
point  in  the  dispute. 

That  the  public  was  taking  a  far  greater  interest  than  formerly  in 
the  discussions  between  the  several  branches  of  the  government,  and  in 
the  proceedings  of  the  bodies  themselves  was  evidenced  from  time  to 
time  by  attempts  on  the  part  of  the  Assembly  to  restrict  the  freedom  of 
printing.  For  example,  when  the  Twenty-fourth  Assembly  came  together 
on  June  25,  1745,  it  was  at  once,^'^ 

"  Ordered,  That  the  Votes  and  Proceedings  of  this  House,  be 
printed  from  Time  to  Time,  being  first  perused  and  signed  by  the 
Speaker;  and  that  no  other  Person  but  such  as  he  shall  appoint,  do  pre- 
sume to  print  the  same." 

This  order  and  prohibition  we  find  repeated  at  the  beginning  of 
each  session  during  the  colonial  period  until  the  Revolution. 

The  administration  of  Governor  George  Clinton  is  very  important 
on  the  side  of  Constitutional  growth,  since  it  is  now  that  the  General 

20  Minutes,  General  Assembly  for  that  date. 


LIBERTY    OF    THE    PRESS  53 

Assembly  for  the  first  time  clearly  enunciates  the  principles  of  self-govern- 
ment and  the  right  not  only  to  vote  the  taxes  but  to  determine  the  ways 
in  which  the  money  shall  be  expended.  In  1747  the  colonies  were 
engaged  in  war  with  France,  and  it  was  of  the  greatest  importance  that 
the  outposts  and  fortified  places  on  the  Canadian  border  should  be 
adequately  garrisoned  and  amply  supplied  with  provisions  and  munitions 
of  war.  Clinton  was  striving  to  assert  the  principle  of  royal  prerogative 
in  the  matter  of  money-bills,  a  right  which  Governor  Clarke  had  allowed 
to  slip  away  from  him.  This  attempt  the  General  Assembly  naturally 
resisted,  and  as  a  result  is  reproached  by  the  Governor  with  neglecting 
to  provide  him  with  the  money  necessary  to  keep  the  province  properly 
defended  against  the  French.  In  the  Minutes  of  the  General  Assembly 
of  Oct.  8th,   1747,  appears  the  following  Message  from  the  Governor, 

''  Gentlemen, 

By  your  Votes  I  understand  you  are  going  upon  Things  very  foreign 
to  what  I  recommended  you :  I  will  receive  nothing  from  you  at  this 
critical  Juncture,  but  what  relates  to  the  Message  I  last  sent  you,  viz. 
By  all  Means,  immediately  to  take  the  preservation  of  your  Frontiers, 
and  the  Fidelity  of  the  Indians,  into  consideration :  The  Loss  of  a  Day 
may  have  fatal  Consequences;  when  that  is  over,  you  may  have  Time 
enough  to  go  upon  any  other  Matters.  G.  Clinton.'^ 

The  next  day  the  House  took  into  consideration  the  Governor's 
Message,  and  after  a  rather  theatric  locking  of  the  door  and  laying  the 
key  on  the  table  (as  though,  as  Clinton  says  in  his  Message  of  Oct.  13th, 
some  one  were  attempting  to  break  in,)  drew  up  a  set  of  Resolutions  to 
be  delivered  to  the  Governor,  in  which  his  Message  was  declared  to  be 
an  attempt  to  subvert  the  rights,  privileges,  and  immunities  of  the  House. 
In  addition  a  long  document,  called  "  A  Humble  Remonstrance  of  the 
House  on  the  present  State  and  Condition  of  the  Colony,"  was  ordered 
carried  by  a  committee  to  the  Governor.  This  document,  which  had 
taken  a  Committee  several  days  to  draw  up,  was  a  long  and  detailed  state- 
ment of  the  Assembly's  side  of  the  quarrel  and  an  attempt  to  show  that  the 
wretched  state  of  the  colony's  affairs  was  due  to  the  tactics  of  delay  made 
use  of  by  the  Governor  and  not  to  any  fault  of  the  Assembly  which  was 
very  willing  to  grant  money  provided  it  had  some  assurance  that  the 
sums  voted  would  be  expended  for  the  purposes  designated.  This 
Remonstrance  the  Governor  refused  to  receive,  and  by  his  Secretary 
directed  James  Parker,  the  ofl^icial  printer,  not  to  print  it  in  the  proceed- 


54  LIBERTY    OF    THE    PRESS 

ings  of  the  Assembly;  this  direction  was  not  heeded  by  Parker,  a  step 
which  brought  out  from  the  Governor  the  following  Order : 

"  By  His  Excellency  the  Honourable  George  Clinton,  Captain 
General  and  Governor  in  Chief,  of  the  Province  of  New  York,  etc. 

To  Mr.  James  Parker,  Printer  to  the  General  Assembly  of  the 
Province  of  New  York. 

Whereas  some  Persons,  calling  themselves  a  Committee  of  the 
General  Assembly  of  this  Province,  came  into  an  Apartment  of  my 
House,  on  the  9th  instant,  while  I  was  engaged  in  my  private  affairs; 
and  without  the  least  previous  Notice,  one  of  them  offered  to  read  a 
large  bundle  of  Paper,  which  he  said  was  a  Remonstrance  from  that 
House,  and  desired  my  Leave  to  read  the  same,  which  I  absolutely 
refused,  or  to  have  it  left  with  me;  and  whereas  the  Speaker  of  the  said 
General  Assembly  hath,  in  disregard  to  my  Authority  and  Person, 
ordered  the  same  to  be  printed  by  you  in  their  Votes,  although  I  fore- 
warned you  by  my  Secretary  not  to  do  it;  but  as  you  afterwards  signified 
to  him,  that  a  Verbal  Order  was  not  sufficient  to  forbid  you  printing  any 
Thing  to  that  Purpose; 

I  do  hereby  in  his  Majesty's  Name,  expressly  forbid  you  or  any 
other  person  in  this  Province,  to  re-print  or  otherwise  publish,  the  said 
Paper,  called,  a  Remonstrance  of  the  General  Assembly  of  this  Province, 
as  you  and  they  shall  answer  the  same  at  your  and  their  Peril;  the  said 
Paper,  containing  many  false,  scandalous  and  malicious  Aspersions  on 
me,  as  Governor  of  this  Province;  and  I  do  hereby,  further  require  you, 
to  give  publick  Notice  of  this  my  Order,  by  publishing  the  same  in  your 
next  News-Paper;  and  for  your  so  doing,  this  shall  be  the  warrant. 

Given  under  my  Hand,  at  the  City  of  New  York,  October 
24th,  1747.21 

G.  Clinton." 

This  Order  having  duly  appeared  in  Parker's  New  York  Gazette 
and  Post  Boy,  the  Speaker  on  Oct.  26th  reported  it  to  the  House  and 
requested  "  that  the  House  would  vindicate  his  Conduct  therein." 
Accordingly  Parker  was  ordered  to  appear  before  the  body.  He  came 
the  next  day  and  produced  Clinton's  order  in  justification  of  his  action, 
and  the  Assembly  then  passed  the  following  resolutions;  -^ 

21  Minutes,  General  Assembly,  Oct.  27,  1747. 

22  Minutes,   General   Assembly,   Oct.  27,   1747. 


LIBERTY    OF    THE    PRESS  55 

Resolved,  Nemine  Contradicente,  That  it  is  the  undoubted  Right 
of  the  People  of  this  Colony,  to  know  the  Proceedings  of  their  Represen- 
tatives in  General  Assembly,  and  that  any  Attempt  to  prevent  their  Pro- 
ceedings being  printed  and  published,  is  a  Violation  of  the  Rights  and 
Liberties  of  the  People  of  this  Colony. 

"  Resolved,  Nemine  Contradicente,  That  any  Attempt  to  prohibit 
the  printing  or  re-printing  of  any  of  the  Proceedings  of  this  House,  is 
an  infringement  of  the  Privileges  of  this  House,  and  of  the  People  they 
represent. 

"  Resolved,  Nemine  Contradicente,  That  the  Humble  Remon- 
strance of  this  House,  of  the  9th  instant,  though  his  Excellency,  (con- 
trary to  the  uninterrupted  Usage  in  such  Cases,)  refused  to  receive  it, 
was,  notwithstanding,  a  regular  Proceeding  of  this  House. 

"  Resolved,  Nemine  Contradicente,  That  his  Excellency's  Order  to 
forbid  the  printing  or  re-printing  the  said  Remonstrance,  is  unwarrant- 
able, arbitrary  and  illegal,  and  not  only  an  open  and  manifest  Violation 
of  the  Privileges  of  this  House,  but  also  of  the  Liberty  of  the  Press,  and 
evidently  tends  to  the  utter  subversion  of  all  the  Rights  and  Liberties  of 
this  House,  and  of  the  People  they  represent. 

"  Resolved,  Nemine  Contradicente,  That  Mr.  Speaker's  ordering 
the  said  Remonstrance  to  be  printed  with  the  Votes  and  Proceedings  of 
this  House,  is  regular,  and  entirely  consistent  with  the  Duty  of  his  Office 
as  Speaker  of  this  House." 

On  Nov.  1 2th  a  further  step  was  taken,  when  Col.  Lewis  Morris 
made  the  following  Motion,  which  was  carried; 

"  The  late  Order  in  Parker's  Paper,  ordering  him  as  Printer  of  this 
House,  not  to  publish  or  print  the  Proceedings  of  this  House,  is  an 
Attempt  to  deprive  the  People  of  these  Colonies  of  their  Liberties;  I 
therefore  move,  that  we  order  him  to  reprint  our  Humble  Remonstrance 
to  his  Excellency,  and  that  he  deliver  ten  Copies  to  each  member  of  this 
House,  that  our  Constituents  may  know,  that  it  is  our  firm  Resolution 
to  preserve  the  Liberty  of  the  Press,  and  to  communicate  our  proceedings 
to  them,  that  they  may  judge  of  our  Conduct." 

The  Governor  up  to  this  time  had  said  nothing  on  the  subject,  but 
in  his  Speech  dissolving  the  Assembly  on  Nov.  25,  ^^  he  breaks  his  silence 

23  Minutes  of  General  Assembly  of  that  date. 


56  LIBERTY    OF    THE    PRESS 

and  argues  the  matter  at  length.  He  begins  by  saying  that  their  action 
has  a  very  dangerous  likeness  to  a  desire  to  grasp  the  executive  power,  a 
result  which  would  be  destructive  of  their  dependency  on  Great  Britain, 
and  of  which  the  people  of  Great  Britain  might  become  jealous.  He 
then  goes  on  to  show  that  their  conduct  is  not  only  wanting  in  respect  to 
their  Sovereign,  since  the  Governor  is  his  representative,  but  even  want- 
ing in  ordinary  manliness  and  honesty,  since  they  are  striking  at  one  who, 
(on  account  of  his  position,)  cannot  retaliate.  The  question  as  to  whether 
the  paper  is  not  a  false,  scandalous  and  malicious  libel  he  left  to  his 
superiors  in  England.  He  ends  his  statement  of  the  matter,  "  As  to  the 
popular  Out-cry  you  endeavor  to  raise,  of  the  Liberty  of  the  Press,  I  shall 
only  say,  that  certainly  this  Liberty,  as  well  as  any  other  may  be  abused, 
to  the  injury  of  others;  if  an  injury  is  done,  a  proper  Remedy  ought  to  be 
applied;  and  such  a  Remedy  can  never  be  thought  a  Restraint  of  any  just 
Liberty.  I  am  persuaded  that  no  considerate  man  can  think,  that  I 
offered  any  Obstruction  to  the  Liberty  of  the  Press,  by  forbidding  the 
Printer  to  publish  that  one  Paper  at  his  Peril;  if  no  Peril  in  doing  it, 
neither  the  author  nor  Publishers  of  it  can  suffer  by  the  Order;  the 
proper  Judges  may  in  Time  show,  whether  I  did  a  Service  or  a  Disservice 
to  any,  by  such  Warning." 

The  Twenty-fifth  Assembly  came  together  in  the  Spring  of  1748 
and  the  old  quarrel  was  resumed.  On  reassembling  for  the  second  Ses- 
sion in  September  an  Address  was  drawn  up  in  which  former  complaints 
were  reiterated,  and  which  the  Governor  refused  to  receive.^*  The 
Address  was  then  printed  in  the  Votes  and  Proceedings  of  the  Assembly, 
and  on  Nov.  1 2th  the  Governor,  in  proroguing  the  Assembly,  took 
occasion  to  complain  of  their  method  of  procedure. 

"  In  whatever  your  Governor  and  you  differ,  there  is  a  legal  Method 
for  Redress.  In  my  Message  to  you,  I  told  you  that  I  would  do  the 
Justice,  to  send  a  Copy  of  that  Paper,  which  you  call  an  Address,  to  his 
Majesty's  Ministers;  which  is  sending  it  to  the  proper  Tribunal  for 
Redress,  if  I  have  done  you  any  injury,  by  my  refusing  to  receive  it;  but 
you  seem  to  decline  this  legal  Method;  and  by  your  publishing  that 
Paper,  under  the  name  of  an  Address,  in  your  Votes,  and  afterwards  in 
a  publick  News  Paper,  published  by  the  Printer  of  your  Votes;  you  seem 
to  place  the  dernier  Resort  in  all  Disputes  between  you  and  your  Gov- 
ernor, in  the  Populace;  how  his  Majesty  may  take  this,  or  how  a  Parlia- 

2-*  Minutes,  General  Assembly,  Oct.  19  and  Oct.  21. 


LIBERTY    OF   THE    PRESS  57 

ment  of  Great  Britain,  may  take  your  claiming,  not  only  the  Privileges 
of  Parliament,  but  Privileges  far  beyond  what  any  House  of  Commons 
ever  claimed,  deserves  your  most  serious  consideration."  -^ 

Governor  George  Clinton  was  succeeded  by  Sir  Danvers  Osborne  in 
the  summer  of  1753,  but  the  latter  meeting  with  a  violent  death  the  gov- 
ernment devolved  on  James  Delancey,  the  Lieutenant-Governor.  The 
latter  in  his  speech  at  the  coming  together  of  the  Assembly  took  occasion 
to  quote  certain  paragraphs  from  the  Instructions  given  to  Sir  Danvers 
Osborne.  These  would  naturally  be  of  interest  to  all  in  the  colony,  and 
Hugh  Galne,  the  printer  of  the  New  York  Mercury,  published  the  para- 
graphs in  his  next  Issue.  This  provoked  comment  and  the  Assembly  at 
once  took  action.  ^^ 

"  The  House  being  informed  that  one  Hugh  Gaine,  a  printer,  In  the 
City  of  New  York,  had  presumed  In  his  Paper,  called,  the  New  York 
Mercury,  of  Monday,  November  the  12th,  1753,  No.  66,  to  print  and 
publish  Part  of  the  Proceedings  of  this  House,  particularly  several 
articles  of  his  Majesty's  Instructions  to  his  Excellency,  the  late  Sir  Dan- 
vers Osborne,  Baronet;  and  the  said  Paper  being  produced,  and  read, 

"  Ordered,  That  the  said  Hugh  Gaine,  attend  this  House  To-mor- 
row, at  10  o'clock  In  the  morning. 

"  Ordered,  That  the  Serjeant  at  Arms,  attending  this  House,  serve 
the  said  Hugh  Gaine,  with  a  Copy  of  this  Order  forthwith." 

Next  day  Hugh  Gaine  appeared  at  the  Bar  of  the  House;  "  being 
asked,  whether  he  was  the  Printer  of  the  Paper,  called  the  New  York 
Mercury,  he  acknowledged  that  he  was;  and  then  being  asked,  by  what  > 
Authority  he  had  therein  printed  and  published  an  Extract  of  the  Votes  ^ 
of  this  House;  answered,  that  he  had  no  Authority  for  doing  It,  and 
knew  not  that  he  did  amiss  in  doing  so;  and  that  he  was  very  sorry  that 
he  had  offended  the  House,  and  humbly  asked  their  Pardon."  -^ 

The  result  was  that  after  the  matter  had  been  discussed   In  the  y 
House  the  printer  was  called  in,  reprimanded,  and  allowed  to  go,  on  pay- 
ing the  costs. 

In  1756  James  Parker,  who  had  in  1747  braved  the  wrath  of  Gov- 

25  Minutes,  General  Assembly  of  that  date. 

26  Minutes,  General  Assembly,  Nov.  13,  1753. 

27  Minutes,  General  Assembly,  Nov.  14,  1753. 


58  LIBERTY    OF    THE    PRESS 

ernor  Clinton  in  order  to  obey  the  Speaker  of  the  House,  himself  fell 
into  disgrace.  Parker  and  Wm.  Weyman  were  at  this  time  joint  owners 
of  the  New  York  Gazette,  or  the  Weekly  Post  Boy,  and  on  the  15th  of 
March,  published  an  article  entitled  "  Observations  on  the  Circumstances 
and  Conduct  of  the  People  in  the  Counties  of  Ulster  and  Orange,  in  the 
Province  of  New  York." 

The  Assembly  at  its  meeting  on  the  i6th  took  the  matter  up  on  the 
ground  that  it  reflected  on  the  conduct  and  composition  of  the  House. 
The  Serjeant  at  Arms  was  directed  to  bring  the  printers  to  the  Bar. 
Parker  was  out  of  town,  but  Weyman  appeared,  and  being  asked  how  he 
/had  come  to  print  it  said  that  he  done  so  merely  as  a  piece  of  news,  and 
went  on  to  say  that  he  believed  it  to  have  been  written  by  the  Rev. 
Hezekiah  Watkins,  a  clergyman  of  Newburgh,  Ulster  County,  and  that 
he  was  heartily  sorry  for  the  mistake.     The  House  then;  ^^ 

"  Resolved,  That  the  Piece contains  sundry  inso- 
lent, false,  and  malicious  Expressions,  calculated  to  misrepresent  the  con- 
duct of  the  Representatives  of  the  People  of  this  Colony. 

"  Resolved,  That  the  Author  of  the  said  Piece  has  attempted  by 
false  and  m.alicious  Misrepresentations,  to  irritate  the  People  of  this 
Colony  against  their  Representatives  in  General  Assembly,  and  is  there- 
fore guilty  of  a  high  Misdemeanor  and  a  Contempt  of  the  Authority  of 
this  House. 

"  Resolved,  That  James  Parker  and  Wm.  Weyman,  for  having 
published  the  said  Piece  in  their  Weekly  Paper,  are  guilty  of  a  high  Mis- 
demeanor and  a  Contempt  of  the  Authority  of  this  House. 

"  Resolved,  That  James  Parker  and  Wm.  Weyman,  be  for  their 
said  offense,  taken  into  the  Custody  of  the  Sergeant  at  Arms  attending 
this  House." 

Four  days  later  Parker  presented  a  petition  setting  forth  that  on 
receiving  news  of  what  had  happened  he  had  at  once  returned  and  sur- 
rendered himself;  that  the  writer  of  the  piece  was  Mr.  Watkins,  as  he 
could  easily  prove;  and  the  petition  goes  on  to  say  "  that  when  he  received 
the  said  Piece,  he  thought  it  contained  sundry  indecent  Expressions,  and 
thereupon  struck  them  out,  but  is  sorry  that  he  left  sundry  Matters,  which 
though  they  seemed  not  to  be  malignant  to  him  at  the  Time,  appear  now 
to  be  so;  that  he  humbly  confesses  his  fault  In  printing  the  said  Piece; 

28  Minutes,  General  Assembly,  March  19,  1756. 


LIBERTY    OF    THE    PRESS  59 

that  he  had  no  design  to  give  Offense  thereby,  promised  to  be  more  cir- 
cumspect for  the  future,  and  humbly  begs  the  pardon  of  the  honourable 
House:  And  therefore  humbly  praying  (having  long  experienced  the 
Kindness  of  the  Honourable  House)  a  Dismission  from  the  Custody  in 
which  he  now  is." 

A  week  later  the  House  took  the  matter  up,  and  a  motion  to  that 
effect  having  been  made  by  Capt.  Richard,  Parker  and  Weyman  were 
discharged  from  custody. 

The  House  having  been  prorogued  shortly  after  this,  it  was  not 
until  it  came  together  again  that  the  matter  of  the  Revd.  Mr.  Watkins 
received  attention.  On  Oct.  15,  1756,  a  motion  was  made  by  Capt.  Wal- 
ton that  Mr.  Watkins  be  ordered  to  attend  the  House.  Accordingly  he 
appeared  on  the  22nd  and  admitted  the  fact  of  authorship  said  that  he  ^ 
had  had  no  intention  of  acting  disrespectfully  but  that  the  condition  of 
affairs  in  Ulster  and  Orange  Counties  had  caused  his  zeal  for  the  wel- 
fare of  the  people  to  carry  him  too  far;  and  that  he  was  heartily  sorry. 
In  spite  of  his  explanation  he  was  ordered  into  the  custody  of  the  Ser- 
geant at  iVrms,  and  the  Minutes  of  the  next  day  (Oct.  23,)  set  forth  his 
Petition  in  which  he  went  over  at  greater  length  the  explanation  he  had 
given  orally  the  day  before.  After  some  discussion  of  the  matter  he 
was  ordered  to  be  brought  to  the  Bar  of  the  House  where  he  was  repri- 
manded by  the  Speaker  and  then  discharged. 

Another  case  very  similar  to  the  last  was  that  of  Samuel  Townsend, 
a  Justice  of  the  Peace  of  Queen's  County.  Some  of  the  so-called 
*'  Neutral  French  "  had  been  quartered  upon  Long  Island,  and  Samuel  y 
Townsend  wrote,  in  reference  to  their  uncared  for  condition  and  mis- 
fortunes, a  letter  to  the  Speaker  which  the  latter  laid  before  the  Assembly 
on  Mar.  16,  1758,  and  Townsend  was  ordered  to  appear  and  explain  the 
matter.     Having  examined  him  the  House  ^^ 

"  Resolved,  That  the  letter contains  sundry  inde- 
cent and  insolent  Expressions,  reflecting  on  the  Honour,  Justice  and 
Authority  of  this  House. 

"  Resolved,  Nemine  Contradicente,  That  the  said  Samuel  Town- 
send,  for  writing  and  sending  the  said  Letter,  is  guilty  of  a  high  Misde- 
meanor and  a  most  daring  Insult,  on  the  Honour,  Justice,  and  Authority 
of  this  House. 

29  Minutes,  General  Assembly,  Mar.  23,  1758. 


6o  LIBERTY    OF    THE    PRESS 

"  Ordered,  That  the  said  Samuel  Townsend  remain  in  the  Custody 
of  the  Sergeant  at  Arms  attending  this  House." 

Next  day  a  long  petition  was  presented  in  which  Townsend  begged 
"  leave,  humbly  to  express  his  Uneasiness  and  Sorrow,  for  having  wrote 
the  said  Letter;  and  at  the  same  time,  to  declare  that  he  did  not  intend 
thereby  to  cast  any  Reflection  upon  the  Conduct  or  Dignity  of  this  House, 
and  that  he  shall  for  the  future  be  more  cautious  to  avoid  every  occasion 
of  exposing  himself  to  their  Censure  or  Reproof. 

"  Your  Petitioner  therefore  most  humbly  Prays,  that  the  sincere 
Acknowledgement  of  his  Sorrow  and  Uneasiness  may  prevail  upon  this 
honourable  House,  to  treat  him  with  all  that  Levity  and  Compassion, 
to  which  the  Innocence  of  his  Intention  herein  declared,  and  the  real 
Regard  he  has  for  the  Honour  of  this  House,  may  entitle  him,  and  dis- 
charge him  from  the  Custody  of  the  Sergeant  at  Arms." 

After  this  had  been  read  Townsend  was  ordered  to  the  Bar,  and; 
having  been  reprimanded  by  the  Speaker,  was  discharged. 

The  growing  dissatisfaction  with  the  home  government  was  fanned 
into  open  opposition  when  the  news  arrived  in  the  colonies  that  the 
Ministry,  not  content  with  the  restrictions  which  it  had  placed  upon  the 
growing  trade  of  the  Atlantic  coast  towns,  had  decided  to  introduce 
direct  taxation  by  a  duty  on  stamped  paper.  The  popular  press  in  New 
York  was  filled  with  articles  against  the  Stamp  Act,  but  these  articles 
were  far  exceeded  in  number  and  influence  by  handbills  which  were  posted 
throughout  the  town,  and  read  and  discussed  by  all  the  inhabitants.  The 
Assembly  passed  all  this  over,  in  silence,  tacitly  permitting  what  but  a 
short  time  before  would  have  brought  any  one  suspected  of  complicity  in 
the  writing  or  printing  of  the  same  to  its  Bar. 

But  a  peculiarly  offensive  piece  of  writing  finally  was  taken  notice 
of.  It  was  about  a  month  after  the  riot  of  Nov.  ist,  1765,  (when  the 
Stamp  Act  was  due  to  go  into  effect,)  on  which  occasion  some  damage 
had  been  done  to  the  fort  and  batteries,  that,  ■^"  "  Mr.  Lott,  Clerk  to 
this  House,  presented  on  the  26th  instant,  a  sealed  Letter  to  the  House, 
directed  in  the  words  following,  viz.  '  To  the  General  Assembly  of  the 
Province  of  New  York.'  Which  Letter  was  delivered  to  him,  the  said 
Lott,  by  his  Clerk  who  had  received  it  from  a  Person  unknown ;  and  was 
enclosed  in  another  Letter  directed,   '  To   Mr.   Lott,   Mercht.   in   New 

"*J  Minutes,  General  Assembly,  Nov.  29th,  1765. 


LIBERTY    OF    THE    PRESS  6l 

York,'  and  the  same  being  read,  was  in  the  words  following:  '  on  Receiv- 
ing you  are  to  read  the  in  Closed  in  the  open  assembly  of  this  Province 
New  York  as  you  are  Clark  and  whare  of  fail  not  on  your  perrel. 

(Signed)  Freedom.' 

And  then  the  Letter  addressed  to  the  General  Assembly  being 
opened  and  also  read,  was  in  the  Words  following :  '  Gentlemen  of  the 
House  of  Representatives  you  are  to  consider  what  is  to  be  Done  first 
Drawing  of  as  much  money  from  the  Lieut.  Governors  Sallery  as  will 
Repare  the  fort  and  on  Spike  the  Guns  on  the  Battery  and  the  next  a 
Repeal  of  the  Gunning  Act  and  then  thare  will  be  a  good  Militia  but 
not  before  and  also  as  you  are  asetting  you  may  Consider  of  the  Build- 
ing Act  as  it  is  to  take  place  nex  yeare  wich  it  Cannot  for  thare  is  no 
Supply  of  Some  Sort  of  meterials  Require'd  this  Law  is  not  Ground  on 
Reasons  but  thare  is  a  Grate  many  Reasons  to  the  Contrary  do  Gentle- 
men we  desire  you  will  Do  what  Lays  in  your  power  for  the  Good  of  the 
public  but  if  you  take  this  ill  be  not  so  Conceited  as  to  Say  or  think  that 
other  People  know  noting  about  Government  you  have  made  these  Laws 
and  say  they  are  Right  but  they  are  Rong  and  take  a  way  Liberty, 
Oppressons  of  your  make  Gentlemen  make  us  Sons  of  Liberty  think  you 
are  not  for  the  Public  Liberty,  this  is  the  General  Opinion  for  this  part 
of  Your  Conduct.  by  order 

Signd.  one  and  all 

Freedom  ' 
1765  Nov.  26. 

"  The  House  then  proceeded  to  the  Consideration  of  the  said 
Letters,  and  having  fully  weighed  and  Examined  the  same; 

"  Resolved,  Nemine  Contradicente, 

"  That,  said  Letters  are  Libellous,  Scandalous  and  Seditious,  con- 
taining many  indecent  and  insolent  Expressions,  highly  reflecting  on  the 
Honour,  Justice  and  Authority  of,  and  an  High  Insult  and  Indignity 
to  this  House;  and  are  designed  and  calculated  to  inflame  the  Minds  of 
the  good  People  of  this  Colony,  against  their  Representatives  in  General 
Assembly. 

"  Resolved,  Nemine  Contradicente, 

"  That  the  Author  or  Authors  of  the  said  Letters  is,  or  are,  guilty 
of  an  High  Misdemeanor  and  a  most  daring  Insult  on  the  Honour, 
Justice,  and  Authority  of  this  House." 


62  LIBERTY    OF    THE    PRESS 

They  then  resolv^ed  to  present  an  Address  to  the  Governor  calling 
on  him  to  offer  a  reward  of  £50  for  the  discovery  of  the  Author  or 
Authors,  and  say  that  the  House  will  provide  means  to  meet  the  expense. 

Writing  under  date  of  Sept.  23,  1765  to  Secretary  Conway  in  Eng- 
land, Lieutenant  Governor  Colden  remarks  on  this  general  subject:  ^^ 

"  Soon  after  it  was  known  that  Stamp  Duties  were  by  Act  of  Par- 
liament to  be  paid  in  the  Colonies,  virulent  papers  were  published  in  the 
Weekly  Newspapers,  filled  with  every  falsehood  that  malice  could  invent 
^'  to  serve  their  purpose  of  exciting  the  people  to  disobedience  of  the  Laws 
and  to  Sedition.  At  first  they  only  denied  the  authority  of  Parliament 
to  lay  internal  taxes  in  the  Colonies  but  at  last  they  have  denyed  the  Legis- 
lative Authority  of  the  Parliament  in  the  Colonies,  and  these  papers 
continue  to  be  published. 

I  agreed  with  the  Gentlemen  of  the  Council  that  considering  the 

/present  temper  of  the  people  this  is  not  a  proper  time  to  prosecute  the 

I       printers  and  Publishers  of  the  Seditious  Papers.      The  Attorney  General 

likewise  told  me  that  he  does  not  think  himself  safe  to  commence  any 

such  Prosecution." 

And  in  another  letter  to  Secretary  Conway  under  date  of  Oct.  12, 
1765,''^  he  again  refers  to  the  matter. 

"  Since  the  last  which  I  had  the  honour  to  write  to  you  of  the  23d  of 
September,  this  town  has  remained  quiet  the  inflammatory  Papers  con- 
tinue to  be  published,  exciting  the  People  to  oppose  the  execution  of  the 
Act  of  Parliament  for  laying  a  Stamp  Duty  in  the  Colonies.  The  most 
remarkable  of  these  Papers  is  enclosed.  This  was  distributed  along  the 
Post  Roads  by  the  Post  Riders.  I  examined  the  Post  Master  in  this 
place  to  know  how  this  came  to  be  done.  He  assured  me  that  it  was 
.  without  his  knowledge;  that  he  had  examined  the  Post  Riders  and  found 
^  that  one  or  more  Bundles  of  them  were  delivered  at  Woodbridge,  New 
Jersey,  to  the  Post  Rider,  by  James  Parker  Secrettary  to  the  General 
Post  Ofl^ce  in  N.  America.  Parker  was  formerly  a  printer  in  this  place 
and  has  now  a  printing  Press  and  continues  to  print  occasionally.  It  is 
believed  that  this  Paper  was  printed  by  him.  The  Gentlemen  of  the 
Council  think  it  prudent  at  this  time  to  delay  making  more  particular 
inquiry  least  it  should  be  the  occasion  of  raising  the  Mob  which  it  is 
thought  proper  by  all  means  to  avoid." 

31  Doc.  Rel.  Col.  Hist.  N.  Y.,  VH,  759. 

32  Doc.  Rel.  Col.  Hist.  N.  Y.,  VII,  767. 


LIBERTY    OF    THE    PRESS  63 

In  the  fall  of  1767  a  pamphlet,  of  which  a  few  copies  were  reprinted 
from  a  London  Edition,  appeared  in  New  York  and  created  considerable 
excitement.  It  was  entitled  "  The  Conduct  of  Cadwallader  Colden, 
Esq.  Lieutenant-Governor  of  New  York,  relating  to  the  judges'  commis- 
sions:— Appeals  to  the  King;  and  Stamp  Duty."  It  had  been  presented 
by  the  grand  jury  in  October  as  a  libellous  reflection  on  the  Council,  the 
Assembly  and  the  Courts  of  Justice  in  the  province  of  New  York,  and,  as 
its  sub-title  would  indicate,  was  a  defense  of  Colden's  conduct  when  act- 
ing as  Governor.  In  the  course  of  the  argument  reference  was  made  to 
the  action  of  the  two  branches  of  the  Assembly  in  these  matters,  and  both 
bodies  took  umbrage  and  appointed  a  joint  committee  to  investigate,  and 
if  possible  discover,  the  author  and  the  person  responsible  for  the  repub- 
lication in  New  York.^^ 

The  committee  carried  on  its  work  with  vigor,  summoning  among 
others  the  printers  of  the  province  and  also  Colden's  son  and  son-in-law,^^ 
and  the  matter  finally  ended  in  a  report  by  the  committee  to  the  General 
Assembly  and  the  adoption  of  the  following  resolutions.^-^ 

"  Resolved,  .  .  .  That  the  said  pamphlet  highly  reflects  upon  the 
honor,  justice  and  dignity  of  his  Majesty's  Council,  the  General  Assem- 
bly, and  the  Judges  of  the  Supreme  Court;  and  contains  the  most 
malignant  aspersions,  upon  the  inhabitants  of  this  colony  in  general. 

"  Resolved,  That  the  said  pamphlet  tends  to  destroy  the  confidence 
of  the  people,  in  two  of  the  branches  of  the  legislature,  and  the  oflficers 
concerned  in  the  due  administration  of  justice;  to  render  the  government 
odious  and  contemptible,  to  abate  that  due  respect  to  authority,  so  neces- 
sary to  peace  and  good  order,  to  excite  disadvantageous  suspicions  and 
jealousies  in  the  minds  of  the  people  of  Great  Britain,  against  his 
Majesty's  subjects  in  this  colony,  and  to  expose  the  colony  in  general,  to 
the  resentments  of  the  crown  and  both  houses  of  Parliament. 

"  Resolved,  That  as  the  House  has  not  been  able  to  discover  the 
author  of  the  said  pamphlet,  a  dissolution  of  the  general  assembly  is 
speedily  expected;  his  Excellency  the  Governor  be  humbly  requested,  in 
case  the  author  should  hereafter  be  discovered,  to  order  a  prosecution 
to  be  issued  against  him,  that  such  punishment  may  be  inflicted  on  so 
great  an  offender  as  the  law  directs." 

33  Min.  of  Legislative  Council,  and  of  General  Assembly,  Dec.  23  and  30,  1767. 

34  Letter  of   Colden   to  Earl  of  Shelburne,   Jan.   21,   1768.     Doc.  Rel.   Col.   Hist.   N.   Y., 

vni,  p.  6. 

35  Minutes,   General  Assembly,   Feb.  6,   1768. 


64  LIBERTY    OF    THE    PRESS 

This  Is  an  instance  where  neither  branch  of  the  Assembly  can  force 
an  avowal  of  authorship  from  those  who  are  suspected;  a  little  later  we 
shall  find  in  the  Parker-McDougall  case  that  the  Governor  and  Council 
did  not  consider  it  beneath  their  dignity  to  resort  to  very  questionable 
actions  when  they  were  trying  to  find  the  person  responsible  for  a 
pamphlet  which  displeased  them. 

It  is  not  necessary  to  enter  here  on  the  details  of  the  circumstances 
which  finally  led  to  the  repeal  of  the  Stamp  Act  and  the  passage  of  the 
Mutiny  Act.^*^  The  more  extreme  party  had  viewed  with  great  dis- 
quietude the  passage  of  the  latter  act,  and  the  way  in  which  the  Assembly 
had  yielded  In  the  matter  of  meeting  Its  provisions.  When  the  Gover- 
nor, Sir  Henry  Moore,  died  on  Sept.  nth,  1769  and  Lieutenant  Gov- 
ernor Golden  once  more  took  up  the  reins  of  government,  the  feeling  was 
intensified,  and  on  Dec.  i6th,  two  printed  papers  appeared,  the  first 
signed  "  A  Son  of  Liberty,"  and  the  second  "  Legion  "  in  which  "  the 
betrayed  Inhabitants  of  the  City  and  Colony  of  New  York  "  were  invited 
to  meet  on  the  following  Monday  at  the  House  of  De  La  Montayne  In 
the  Fields  near  the  City,  and  there  take  steps  to  set  forth  their  rights  and 
vindicate  the  privileges  which  the  Assembly  seemed  unable  to  successfully 
assert. 

At  this  meeting  which  was  largely  attended  a  speech  was  made  by 
John  Lamb  a  prosperous  merchant  of  the  city. 

Meanwhile  the  Assembly  had  had  its  attention  called  to  the  papers 
and  had  declared  the  first  to  be  "  false,  seditious  and  infamous,"  and 
had  branded  the  second  as  "  an  infamous  libel,"  and  had  requested  the 
Lieutenant-Governor  to  issue  his  proclamation,  offering  a  reward  of  £100 
for  the  discovery  of  the  author.^"  After  the  meeting  in  the  Fields  the 
Assembly  ordered  Lamb  to  appear  before  it,  and  examined  him  as  to 
"  his  conduct  about  the  two  libels  "  but  as  it  did  not  appear  that  his 
actions  at  the  Fields  had  been  In  consequence  of  the  two  libels  he  was 
allowed  to  depart.''**  But  the  Assembly  had  not  given  up  all  hope  of 
finding  and  prosecuting  the  author  of  the  two  pamphlets.  One  of 
Parker's  journeymen  for  the  sake  of  the  reward,  gave  Information  against 
him,  and  on  Feb.  7th  Parker  was  arrested  and  examined  by  the  Governor 
and  Council.     While  the  latter  was  detained  in  a  room  off  the  Council 

30  Vide    Isaac  Q.  Leake,  "  Memoir  of  the  Life  and  Times  of  General  John  Lamb,  Chapters 
II  and  III. 

3"  Minutes,  General  Assembly,  Dec.  i8th  and  19th,  1769. 
38  Minutes,  General  Assembly,  Dec.  31,  1769. 


LIBERTY    OF    THE    PRESS  65 

Chamber,  his  apprentices  were  arrested,  and  brought  before  the  Council, 
and  although  for  a  long  time  they  stoutly  refused  to  admit  any  knowl- 
edge of  the  papers,  one  of  them  by  gross  intimidation  was  finally  brought 
to  admit  that  the  papers  had  been  printed  in  his  master's  office. 

Parker  was  then  brought  back  before  the  Council,  told  that  his 
apprentice  had  admitted  that  it  had  been  printed  by  him,  and  threatened, 
in  case  he  refused  to  name  the  author,  with  the  loss  of  his  position  as 
Secretary  of  the  Post  Office.  Finally  Parker,  being  promised  indemnity, 
gave  information  which  resulted  in  the  arrest  on  a  bench  warrant  of 
Alexander  McDougall,  who  was  taken  before  the  Chief  Justice,  and  on 
refusal  to  admit  the  fact  of  authorship,  committed  to  prison. 

Some  seven  years  before  this,  in  1763,  John  Wilkes,  member  of 
Parliament,  and  editor  of  the  "  North  Britain  "  had  been  arrested  on  a 
general  warrant  for  having  attacked  in  No.  45  of  his  journal  the  Bute 
administration  and  abused  the  King,  charging  the  latter  with  falsehood. 
Wilkes  was  discharged  on  the  ground  of  parliamentary  privilege,  and  the 
question  being  carried  before  the  Chief  Justice,  Lord  Camden,  the  latter 
declared  general  warrants  to  be  illegal.  Wilkes  was  expelled  by  a  sub- 
servient Parliament,  but  was  regarded  by  great  numbers  in  the  nation  as 
a  martyr  to  the  cause  of  liberty  and  freedom  of  discussion. 

Now  it  happened  that  the  vote  of  the  Assembly  declaring  the  hand 
bills  libellous  had  been  printed  on  the  forty-fifth  page  of  the  journal. 
For  either  this  reason,  or  more  probably  because  of  No.  45  of  the  "  North 
Britain"  (which  number  was  often  used  as  a  party-cry  in  England), 
"  Forty-five  "  became  the  watchword  of  the  Sons  of  Liberty,  at  this  time 
a  numerous  body.  McDougall  was  overrun  with  visitors  at  the  jail 
and  was  forced  to  issue  in  the  "  New  York  Weekly  Journal  "  for  Feb. 
15th,  a  card  to  his  friends  in  which  he  appointed  the  hours  from  three  to 
six  in  the  afternoon  to  receive  them. 

In  the  same  number  of  the  Journal  appears  an  account  of  one  of 
these  receptions : 

"  Yesterday,  the  forty-fifth  day  of  the  year,  forty-five  gentlemen,  real 
enemies  to  internal  taxation,  by,  or  in  obedience  to  external  authority, 
and  cordial  friends  to  Capt.  McDougal,  and  the  glorious  cause  of 
American  liberty,  went  in  decent  procession  to  the  New  Gaol;  and  dined 
with  him  on  forty-five  pounds  of  beef,  cut  from  a  bullock  of  forty-five 
months  old,  and  with  a  number  of  other  friends  who  joined  them  in  the 


66  LIBERTY    OF    THE    PRESS 

afternoon,  drank  a  variety  of  toasts,  expressive  not  only  of  the  most 
undissembled  loyalty,  but  of  the  warmest  attachment  to  Liberty,  its 
renowned  advocates  in  Great  Britain  and  America,  and  the  freedom  of 
the  press.  Before  the  evening  the  whole  company,  who  conducted  them- 
selves with  great  decency,  separated  in  the  most  cordial  manner,  but  not 
without  the  firmest  resolution  to  continue  united  in  the  glorious  cause." 
In  April  he  was  indicted  by  the  Grand  Jury  for  libel,  and  being  brought 
to  the  bar  pleaded  not  guilty  and  was  admitted  to  bail. 

While  matters  were  in  this  condition  the  Assembly  again  took  the 
matter  up.  On  Dec.  13,  1770,  the  Speaker  was  directed  to  order  Mc- 
Dougall  to  attend  at  the  Bar  of  the  House  to  answer  a  complaint  made 
against  him  by  Mr.  De  Noyellis  for  being  the  supposed  author  or  pub- 
lisher of  the  paper  signed  "  A  Son  of  Liberty."  ^^  On  his  attending, 
McDougall  was  asked  whether  he  was  or  was  not  the  author  of  the 
paper.  He  replied  "  That  as  the  grand  jury  and  house  of  Assembly  had 
declared  the  paper  in  question  to  be  a  libel,  he  could  not  answer  the  ques- 
tion. Secondly,  that  as  he  was  under  prosecution  in  the  Supreme  Court, 
he  conceived  it  would  be  an  infraction  of  the  laws  of  Justice  to  punish  a 
British  subject  twice  for  one  offense,  for  that  no  line  could  be  run,  that  he 
might  be  punished  without  end;  but  he  would  not  be  understood  to  deny 
the  authority  of  the  house  to  punish  for  a  breach  of  privilege,  when  no 
cognizance  is  taken  of  it  in  another  Court." 

The  Assembly  decided  that  this  was  a  contempt  of  the  authority  of 
the  house,  and,  since  he  refused  to  ask  pardon  of  the  house,  he  was 
ordered  into  the  custody  of  the  Sergeant-at-Arms,  and  placed  in  the 
county  jail. 

A  writ  of  Habeas  Corpus  was  sued  out  before  the  Court  of  Justice, 
whereupon  the  sheriff  notified  the  house  and  asked  what  he  should  do. 
A  committee  was  appointed  on  Jan.  22d,  177  i,  "to  search  the  journals  of 
the  house  of  Commons,  for  precedents  in  cases  where  writs  of  habeas 
corpus  have  been  issued,  to  bring  persons  committed  by  the  Commons 
before  other  Courts."  The  committee  reported  on  Feb.  16,  that  several 
precedents  had  been  found,  which  precedents  were  ordered  printed  in  the 
Journal  of  the  House.  It  was  also  determined  that  the  sheriff  should  be 
indemnified  for  his  action  in  not  obeying  the  order  of  the  Court. 

The  Assembly  was  prorogued  on  March  4,  177  i,  and  did  not  come 

39  Minutes,   General   Assembly  of  that  date. 


LIBERTY    OF    THE    PRESS  6/ 

together  till  Jan.  7,  1772,  and  we  hear  no  more  of  the  McDougall  affair. 
About  this  time  Parker  died  and  as  he  was  the  principal  witness  in  the 
case  it  was  probably  considered  useless  to  bring  up  the  indictment  before 
the  Court. 

From  this  time  on,  pamphlets,  opposing  the  Crown  and  its  policy  of 
repression,  continued  to  appear  in  ever  increasing  number,  but  the  gov- 
ernment made  no  serious  sign  of  opposition,  and  seemed  to  have  given 
up  in  despair  the  attempt  to  control  a  press  which  the  majority  of  the 
people  warmly  supported. 


CHAPTER  V 

THE    PRESS    IN    THE    SOUTHERN    COLONIES 

JN  the  Southern  colonies  we  find,  as  we  should  expect,  an  absence  of 
any  very  Important  cases  bearing  on  the  subject  under  investigation. 
The  ideas  of  Sir  Wm.  Berkeley,  (for  thirty-eight  years  Gover- 
nor of  Virginia),  in  regard  to  the  dissemination  of  information,  may  be 
gathered  from  a  reply  made  by  him  to  some  enquiries  of  the  Lords  Com- 
missioners of  Foreign  Plantations. 

The  question  being  "  What  course  is  taken  about  the  instructing  the 
people,  within  your  government  in  the  Christian  religion;  and  what  pro- 
vision is  there  made  for  the  paying  of  your  minister?"  his  answer  is: 
"The  same  course  that  is  taken  in  England  out  of  towns:  every  man 
according  to  his  ability  instructing  his  children.  We  have  forty-eight 
parishes,  and  our  ministers  are  well  paid,  and  by  my  consent  should  be 
better  if  they  would  pray  oftener  and  preach  less.  But  of  all  other  com- 
modities, so  of  this,  the  worst  is  sent  us,  and  we  had  few  that  we  could 
boast  of,  since  the  persecution  in  Cromwell's  tiranny  drove  divers  worthy 
men  hither.  But,  I  thank  God,  we  have  not  free  schools  nor  printing; 
and  I  hope  we  shall  not  have  these  hundred  years.  For  learning  has 
brought  disobedience  and  heresy  and  sects  into  the  world;  and  printing 
has  divulged  them  and  libels  against  the  government.  God  keep  us  from 
both."  ' 

At  the  beginning  of  the  last  quarter  of  the  seventeenth  century  Vir- 
ginia suffered  from  internal  disorders  (as  Bacon's  Rebellion),  due  to 
political  disturbances  having  their  origin  in  the  English  Civil  War.  Lord 
Culpepper,  the  Governor,  was  inclined  to  stretch  the  royal  prerogative  to 
its  furthest  limit  and  met  the  murmurings  of  the  Assembly  with  a  cold 
and  gloomy  dignity. - 

The  Assembly  insisting  on  its  rights  as  given  in  the  charters,  Lord 
Culpepper  dissolved  the  body  and  endeavored  to  stamp  out  all  remem- 

1  Original    in    a    book    in    the    Office    of    the    General    Court,    labelled    "  Inquisitions    &c., 
1665-1676  "  p.  239,  printed  in  Hening's  Statutes  at  Large,  II,  517. 

2  Burke,  Hist.  Virginia,  II,  237. 

68 


LIBERTY    OF    THE    PRESS  69 

brance  of  past  freedom.  In  the  Bland  MS.  p.  498,''  we  find  the  follow- 
ing entry:  "  Feb.  21,  1682,  John  Buckner  called  before  the  Lord  Cul- 
pepper and  his  Council  for  printing  the  laws  of  1680,  without  his  Excel- 
lency's license,  and  he  and  the  printer  ordered  to  enter  into  bond  in  £100 
not  to  print  anything  thereafter,  until  his  majesty's  pleasure  should  be 
known."  Thus,  the  press  was  strangled  at  its  birth,  since  we  have  no 
record  or  copy  of  any  other  work,  and  that  the  government  continued  to 
watch  carefully  lest  it  should  appear  again  is  proven  by  the  Instructions 
of  Lord  Effingham,  the  next  Governor,  in  which  he  is  ordered  "  to  allow 
no  person  to  use  a  printing  press  on  any  occasion  whatsoever."  ^ 

In  the  period  between  1733,  when  Wm.  Parks  established  his  press 
at  Williamsburg,  and  1765  when  Wm.  Rind  began  to  issue  a  paper  at 
Williamsburg,  there  was  but  the  single  press  in  Virginia,  and  being  the 
organ  of  the  government  it  may  be  easily  imagined  that  it  had  no  great 
temptation  to  struggle  for  the  liberty  of  the  press. 

With  the  exception  of  libel  suits  against  Wm.  Parks  about  the  year 
1740  (by  which  the  House  of  Burgesses  sought  to  punish  him  for  pub- 
lishing an  article  reflecting  on  one  of  the  members),  and  the  presentment 
in  1766  of  Rind,  and  of  Purdie  and  Dixon,  the  publishers  of  the  two  Vir- 
ginia Gazettes  (for  referring  in  a  way  considered  improper,  to  the  bail- 
ment of  Colonel  Chiswell),  in  both  of  which  instances  the  prosecution 
failed  utterly  in  its  attempt, — there  is  nothing  on  the  subject  which  claims 
our  attention. 

In  South  Carolina  the  press  was  encouraged,  liberal  inducements 
being  held  out  to  any  printer  who  would  settle  in  the  colony.  As  a  result 
of  this  policy  we  find  the  printing  press  In  operation  from  the  year  1730, 
a  newspaper  being  published  In  173 1.  In  the  early  period  of  the  history 
of  the  press  In  the  colony  the  only  cause  of  serious  trouble  that  we  find 
was  one  Involving  Peter  Timothy,  of  the  Gazette,  who  had  published  a 
letter  by  one  Hugh  Bryan  In  which  occurred  the  statement  that  "  the 
clergy  of  South  Carolina  broke  their  Canons  dally."  With  Timothy 
were  also  arrested  Bryan  and  George  Whitefield,  the  Evangelist,  who 
had  corrected  the  manuscript.  All  three  were  admitted  to  ball,  and  the 
matter  was  dropped. 

In  1773  one  of  the  most  Important  cases  that  ever  occurred  in  the 

3  Quoted  by  Hening,  Statutes  at  Large,  II,  518. 

4  Chalmer's  Annals,  Vol.  I,  p.  345. 


y" 


K 


70  LIBERTY    OF    THE    PRESS 

colonies  came  about  through  the  publication  In  the  South  Carolina 
Gazette,  then  owned  by  Timothy  and  a  partner  whom  he  had  lately  taken, 
named  Thomas  Powell,  but  managed  entirely  by  the  latter,  of  a  portion 
f  the  proceedings  of  the  Council  on  the  previous  day.  Being  summoned 
to  attend  the  body,  he  admitted  that  he  was  the  publisher  of  the  Gazette, 
and  that  he  had  printed  the  proceedings,  which  on  being  asked  he  said 
had  been  brought  to  him  by  the  Hon.  Wm.  Henry  Drayton,  a  member  of 
the  Council.  The  Council  then  adjudged  him  "  guilty  of  a  high  breach 
of  the  privileges,  and  a  contempt  of  the  house." 

Powell  refused  to  ask  pardon  of  the  Council  which  then, 

"  Resolved,  That  Thomas  Powell,  who  hath  this  day  been  adjudged 

by  this  house,  to  have  been  guilty  of  a  high  breach  of  privilege,  and  a 

contempt  of  this  house,  be  for  his  said  offense  committed  to  the  Common 

"^Gaol  of  Charleston;  and  that  his  Honor,  the  President  of  this  house,  do 

Issue  his  warrant  accordingly." 

Mr.  Drayton,  who  was  present,  and  had  acknowledged  his  share  in 
i^the  affair,  protested  strongly,  but  without  avail,  and  Powell  was  placed  in 
prison.  Two  days  later,  on  Sept.  2d,  the  Hon.  Rawlins  Lowndes,  and 
Mr.  George  Gabriel  Powell,  the  former  being  Speaker  of  the  Assembly, 
and  the  latter  one  of  the  members  of  the  body,  and  both  being  justices  of 
the  peace,  had  Powell  brought  before  them  on  a  writ  of  Habeas  Corpus 
and  discharged  him.     The  Council  then  took  action  In  these  resolutions: 

"  Resolved,  That  the  power  of  commitment  Is  so  necessarily  incident 
to  each  house  of  Assembly,  that  without  it  neither  their  authority  nor 
dignity  can  in  any  degree  whatsoever  be  maintained  or  supported. 

"  Resolved,  That  Rawlins  Lowndes,  Esqr.,  Speaker  of  the  Com- 
mons House  of  Assembly,  and  George  Gabriel  Powell,  Esqr.  member 
of  the  said  house,  being  two  justices  of  the  peace,  iiniis  quorum,  lately 
assistant  judges  and  justices  of  his  majesty's  court  of  Common  Pleas, 
have,  by  virtue  of  habeas  corpus  by  them  Issued,  caused  the  body  of  T. 
Powell  to  be  brought  before  them,  on  the  second  of  this  instant  Septem- 
ber, and  the  said  justices,  disregarding  the  commitment  of  this  house,  did 
presumptuously  discharge  T.  Powell  out  of  the  custody  of  the  sheriff 
under  the  commitment  of  this  house. 

"  Resolved,  That  the  said  justices  have  been  guilty  of  the  most 
atrocious  contempt  of  this  house." 


LIBERTY    OF    THE    PRESS  7^ 

The  resolution  which  follows  calls  upon  the  Assembly  to  disavow 
the  action  of  these  men  and  give  them  up  to  receive  proper  punishment. 
This  the  Assembly  refused  to  do,  and  then  both  houses  carried  the  matter 
on  petition  to  the  Crown,  and  it  had  not  been  settled  when  the  breaking 
out  of  the  Revolutionary  War  put  an  end  to  the  affair. 

In  this  case  the  attempt  of  the  upper  house  to  destroy  the  liberty  of 
the  press,  was  opposed  by  the  desire  of  the  lower  house  to  uphold  it,  and 
the  fact  that  this  occurred  on  the  eve  of  the  Revolution  is  significant, 
teaching  us  that  even  to  the  last  the  principle  that  the  press  must  be  free 
had  not  been  established  in  the  American  colonies. 


CHAPTER  VI 

CONCLUSION 

WE  have  had  brought  before  us  all  the  instances  of  any  Import- 
ance, throughout  the  American  colonies  of  efforts  on  the  part 
of  the  government  to  control  the  liberty  of  the  press.  Let  us 
now  attempt  to  deduce  from  them  the  general  principles  which  governed 
the  matter. 

In  the  first  place  it  is  clear  that,  as  the  several  colonies  differed  the 
one  from  another  in  their  relations  with  and  dependence  upon  the  home 
government  and  their  Governor,  who  represented  that  government,  so 
too  the  press  was  in  some  colonies  far  more  free  from  control  than  in 
others.  In  Massachusetts,  where  interference  from  outside  was  always 
resisted,  control  by  the  Governor  was  seldom  attempted.  Before  the 
administration  of  Governor  Andros  the  Crown  made  no  attempt  to  Inter- 
fere; Andros  himself  appointed  Edward  Randolph  (vide  p.  9)  as 
licenser,  and  Bartholomew  Green,  the  Boston  publisher  testifies  (vide  p. 
10)  to  the  fact  that  in  his  time  (the  end  of  the  seventeenth  century), 
Lieutenant-Governor  Stoughton  took  a  keen  interest  in  the  productions 
of  the  press,  and  refused  to  allow  any  publications  without  a  previous  ap- 
plication to  him,  with  a  copy  of  the  matter  to  be  published.  After  this 
period  the  control  by  the  Crown  again  was  lost  in  that  as  also  In  political 
matters. 

In  Pennsylvania  we  have  an  Instance  of  a  Governor  representing  an 
individual  proprietor.  Here  the  struggle  between  the  people  and  Penn's 
representative  in  political  matters  was  carried  over  Into  the  field  occupied 
by  the  press,  and  so  we  find  in  the  early  period  of  the  existence  of  the 
press  a  dual  authority  exercised,  the  Crown  and  the  Quarterly  Meeting, 
both  claiming  the  right  of  censorship  (vide  p.  23).  In  the  first  half  of 
the  eighteenth  century  the  power  of  the  Quakers  passed  away  as  far  as 
our  subject  Is  concerned,  but  the  control  exercised  by  the  Crown  continued, 
although  more  and  more  questioned,  until  the  breaking  out  of  the  Revolu- 
tionary struggle. 

In  New  York  the  Governor  himself  was  responsible  for  the  Intro- 

72 


LIBERTY    OF   THE    PRESS  73 

ductlon  of  the  press  and  for  forty  years  (1692-1734),  it  took  no  active 
part  in  political  agitations,  maintaining  a  cautious  neutrality  under  Brad- 
ford. In  this  colony  it  was  rather  a  question  of  the  right  to  freedom  of 
speech,  a  question  raised  in  the  prosecution  of  Col.  Nicholas  Bayard. 
From  the  period  of  the  Zenger  trial  newspapers  continued  to  increase  and 
the  twenty-five  years  before  1775  witnessed  a  continuous  production  of 
pamphlets  in  which  the  Crown  and  its  representative  were  attacked,  the 
efforts  to  punish  by  the  government  being  in  almost  every  case  entirely 
futile.  The  press  divides  itself  into  two  groups,  the  supporters  and 
opponents  of  the  Governor,  and  the  party  newspaper  becomes  a  reality. 

In  the  Southern  colonies  the  press  never  attained  any  liberty,  the 
government  being  ever  on  the  watch  to  repress  the  smallest  attempt  at 
freedom  of  discussion  and  criticism. 

In  the  second  place  we  find  that  the  attitude  assumed  by  the  inhabit- 
ants of  the  colonies,  as  expressed  by  the  actions  of  their  representatives, 
varied  in  the  different  colonies.  We  do  find  this  general  similarity,  that 
in  all  there  was  a  very  jealous  upholding  of  the  rights  of  the  legislative 
body  as  against  criticism.  That  can  be  easily  established  by  a  perusal 
of  the  Minutes  of  any  of  the  Assemblies.  But  in  Massachusetts  a  dis- 
tinction seems  to  have  been  early  established  between  a  criticism  of  the 
proceedings  of  the  General  Court  as  such,  and  a  criticism  of  the  policy  of 
the  government.  In  Pennsylvania  this  view  was  only  in  the  latter  period 
arrived  at;  in  New  York  the  General  Assembly  was  constantly  taking 
offense  at  writings  appearing  in  the  newspapers  or  distributed  in  the 
form  of  pamphlets;  while  in  Virginia  the  question  never  arose  because 
there  was  no  criticism. 

Everywhere  we  find  that  there  was,  as  time  goes  on,  a  general 
advance  towards  freedom  of  discussion.  But  this  is  best  seen  in  non- 
political  matters.  With  the  failure  by  Parliament  in  1695  to  renew  the 
Licensing  Act  all  publication  became  at  least  theoretically  free  except  in 
so  far  as  it  was  restrained  by  the  law  of  libel.  To  just  what  extent  this 
law  could  be  stretched  was  always  a  matter  of  dispute.  The  maxim  "  the 
greater  the  truth,  the  greater  the  libel  "  must  certainly  have  exercised  an 
Influence  to  deter  the  publications  of  the  time  from  the  discussion  of 
private  affairs.  In  fact  In  many  Instances  the  news  contained  in  an  issue 
of  a  newspaper  was  practically  nothing,  the  few  columns  being  occupied 
with  a  very  bald  statement  of  Indian  affairs,  or  the  relations  with  France 
or  perhaps  a  short  account  of  something  which  had  taken  place  In  Eng- 


74  LIBERTY    OF    THE    PRESS 

land  or  on  the  Continent.  The  needs  of  the  community,  as  better  roads 
or  the  impounding  of  wandering  cattle,  were  lightly  touched  on,  but 
there  was  but  slight  evidence  of  any  conception  of  the  idea  that  the  press 
could  lead  and  direct  public  opinion  as  to  municipal  affairs. 

In  political  matters  not  directly  affecting  the  Crown  there  was  also 
a  slight  advance  towards  freedom  of  discussion,  which,  as  the  time  of  the 
Revolution  approached,  became  very  much  extended.  But  here  again 
no  general  rule  can  be  established  for  the  more  radical  colonies,  as 
Massachusetts,  would  naturally  be  far  in  advance  of  the  more  conserva- 
tive, while  between  would  stand  New  York. 

Of  one  thing  we  may  be  confident.  In  no  colony  would  the  Gover- 
nor, as  representing  the  Crown,  permit  a  criticism  of  its  actions  to  pass 
without  censure,  and,  if  possible,  punishment.  When  the  Evening  Post 
of  Boston  (vide  p.  14)  published  in  1741  the  paragraph  in  regard  to  the 
expected  overthrow  of  the  Walpole  Ministry,  the  Attorney-General  was 
at  once  ordered  to  file  an  Information  against  the  printer,  Thomas  Fleet, 
and  although  no  further  proceedings  were  ever  taken,  the  omission  was 
due  rather  to  want  of  confidence  in  the  Massachusetts  jury  than  to  any 
leniency  on  the  part  of  the  Governor.  In  the  case  of  McDougall  (vide 
p.  65),  we  find  the  writer  of  a  pamphlet  obnoxious  to  the  Crown  kept  in 
prison  even  against  a  writ  of  Habeas  Corpus,  and  only  released  when  the 
death  of  the  principal  witness  in  the  case  made  his  conviction  impossible. 

The  liberty  of  the  press  was  still  further  curtailed  by  the  influence 
exerted  by  certain  classes  in  the  community.  There  was  always  a  strong 
feeling  among  those  who  had  grants  of  land  (either  directly  from  the 
Crown  or  by  the  Crown  as  confirmatory  of  purchases  already  made  from 
the  Indians) ,  against  any  discussion  of  their  rights  over  those  who  were 
their  tenants.  This  influence  would  of  course  be  of  importance  only  in 
the  colonies  where  grants  were  numerous,  as  in  the  colony  of  New  York. 
But  another  class  influence,  that  of  the  Clergy,  was  far  stronger  at  all 
times  and  universal  in  its  extent.  In  Massachusetts  and  Pennsylvania  it 
is  hardly  possible  to  overestimate  the  importance  of  this  influence,  and  in 
none  of  the  colonies  can  it  be  neglected  if  we  desire  to  properly  appreciate 
the  difficulties  that  faced  the  printer  in  his  struggle  for  the  right  of  free 
discussion.  The  troubles  of  Wm.  Bradford,  the  elder  in  Pennsylvania 
(vide  p.  26),  and  of  James  Franklin  in  Massachusetts  (vide  p.  11),  give 
us  a  pretty  clear  idea  of  the  troubles  that  would  beset  the  man  who  did 
not  keep  himself  out  of  controversy.     Just  as  the  New  England  Election 


LIBERTY    OF    THE    PRESS  75 

Sermons  give  us  perhaps  the  best  means  of  understanding  the  Influence 
of  the  Clergy  in  the  field  of  politics,  so  these  quarrels  between  printer  and 
Quarterly  Meeting  or  Presbytery  show  us  the  feeling  toward  freedom  of 
discussion. 

It  is  also  important  to  remember  that  the  press  appealed  to  a  very 
much  smaller  percentage  of  the  population  in  colonial  times  than  it  does 
to-day,  "  In  Boston  with  a  population  of  8000,  Campbell  succeeded  in 
selling  but  300  copies  of  his  News  Letter  when  it  was  the  only  newspaper 
printed  in  America."  ^  Later  the  circulation  of  all  the  papers  increased, 
but  it  was  still  but  a  small  proportion  of  the  colonists  who  received  first 
hand  the  opinions  of  the  editor.  And  this  body  of  subscribers  was  for 
the  most  part  of  the  professional  class  or  the  wealthier  part  of  those  in 
trade,  persons  naturally  of  a  conservative  temper  and  apt  to  look  with 
disfavor  on  any  strong  attack  on  or  disregard  of  legalized  and  established 
authority. 

In  New  York,  owing  to  the  peculiar  way  in  which  the  press  was 
Introduced,  it  for  the  first  forty  years  of  its  existence  did  nothing  to  put 
itself  In  antagonism  to  the  government;  in  Massachusetts  it  at  first  was 
given  a  subvention  by  the  General  Court;  in  South  Carolina  a  compara- 
tively large  sum  was  offered  to  any  ncinter  who  would  brave  the  dangers 
of  the  climate  and  establish  a  press.  [_With  these  exceptions  Its  early  days 
were  passed  under  governments  which  viewed  with  dislike  or  suspicion 
any  attempts  on  the  part  of  the  printers  to  take  an  intelligent  part  In  the 
questions  that  were  interesting  the  people.  For  this  reason  the  press  In 
all  the  colonies  early  assumed  a  position  of  antagonism  to  the  constituted 
authority  and  In  return  the  government  took  every  opportunity  to  hurt 
It  by  means  of  prosecutions  in  the  courts  or  inquisitorial  proceedings 
before  the  Governar  and  his  Council.  It  Is  Interesting  to  note  however 
that  these  proceedings  lost  almost  all  their  terrors  as  the  period  of  the 
Revolution  approached,  for  the  press  received  more  and  more  the  support 
of  the  people,  who  had  learned  to  appreciate  the  wide  circulation  which 
the  newspaper  gave  to  the  new  doctrines;  thus  we  constantly  find  the 
grand  juries  refusing  to  find  true  bills  against  the  printers,  in  this  way 
reducing  the  Governor  to  the  use  of  Informations  which  were  looked  on 
with  suspicion  by  the  people  and  seldom  resulted  in  a  verdict  of  Guilty. 

But  the  greatest  Influence  of  the  press  was  exerted  through  the  flood 
of  hand-bills  and  pamphlets  which  ever  Increased  In  volume  as  the  period 

1  Hudson,  History  of  Journalism,  p.   57. 


yd  LIBERTY    OF   THE    PRESS 

of  the  Revolution  drew  near.  Printed  in  large  numbers  and  circulating 
everywhere,  we  find  Governors  reporting  to  the  home  government  that  it 
was  impossible  to  stop  them,  and  that  they  were  doing  incalculable  harm. 

If  now  we  attempt  in  a  very  brief  way  to  review  the  whole  matter 
of  the  struggle  for  the  liberty  of  the  press  we  shall  find: 

First:  That  the  system  in  vogue  in  America,  as  in  England,  up  to 
the  close  of  the  seventeenth  century,  was  a  system  of  administrative  con- 
trol by  the  Crown  through  appointed  officers  called  Censors,  to  whom 
all  writings  had  to  be  submitted  before  publication  and  who  either  gave  or 
refused  permission  to  print.  That  this  Censorship  was  shared  by  Church 
and  State  in  some  instances  only  complicated  the  situation. 

Second:  With  the  failure  to  pass  the  Licensing  Bill  in  1695  the  press 
became  in  all  parts  of  the  English  dominion  freed  from  this  censorship ; 
but  a  system  of  judicial  control  took  its  place,  for  all  publications  were 
now  subject  to  the  law  of  libel,  and  an  attack  on  the  dominant  party  was 
held  by  the  courts  to  be  a  libel,  and  a  censure  of  the  Governor  to  be  a  per- 
sonal reflection  on  the  King.  In  Franklin's  case  in  England  in  1731,^ 
it  was  laid  down  by  Lord  Raymond  that  the  court  alone  was  to  judge  of 
the  criminality  of  a  libel,  to  the  jury  was  given  only  the  right  to  decide  as 
to  the  fact  of  publication. 

In  England  that  doctrine  continued  in  force  until  the  passage  of 
Mr.  Fox's  Libel  Bill  in  1792.  But  fifty-eight  years  earlier  the  Zenger 
case  (in  1734)  had  established  in  principle  the  freedom  of  the  press  in 
the  colonies,  by  settling  the  right  of  juries  to  find  a  general  verdict  in  libel 
cases.  We  have  said  "  In  principle  "  for  this  right,  which  the  colonists 
soon  grew  to  consider  as  apart  of  their  common  law,  was  yet  in  practice 
more  or  less  nullified  in  the  different  colonies  according  as  the  Governor 
was  able  to  impose  his  will  on  the  courts  or  was  opposed  by  an  intelligent 
public  opinion. 

In  other  words,  liberty  of  the  press,  did  not  and  could  not  exist  in 
the  colonial  period,  but  the  people  accepted  the  principle  and  when  they 
obtained  thp  opportunity  incorporated  it  in  Bills  of  Rights  and  State  Con- 
stitutions.-^  The  Continental  Congress  in  issuing,  on  Oct.  21st,  1774,  an 
"  Address  to  the  people  of  Canada  "  proceeded  to  detail  and  enlarge  upon 
the  rights  to  which  English  subjects  were  entitled,  and  among  them  placed 
the  freedom  of  the  press.-' 

2  Howell's   State  Trials   XVH,   1243. 

3  Wm.  Duaiie,  "  Canada  and  the  Continental  Congress,"  p.  20. 


LIBERTY    OF    THE    PRESS  TJ 

We  see  the  same  point  made  by  State  after  State. 

Maryland,  1776 :  "  That  the  liberty  of  the  press  ought  to  be  inviol- 
ably preserved." 

Virginia,  1776 :  "  That  the  freedom  of  the  press  is  one  of  the  great 
bulwarks  of  liberty,  and  can  never  be  restrained  but  by  despotic 
governments." 

Pennsylvania,  1776:  "  That  the  people  have  a  right  to  freedom  of 
speech,  and  of  writing,  and  of  publishing  their  sentiments;  therefore  the 
freedom  of  the  press  ought  not  to  be  restrained." 

Georgia,  1777  :  "  Freedom  of  the  press  and  trial  by  jury  to  remain 
inviolable  forever." 

Vermont,  1777:  "That  the  public  have  the  right  to  freedom  of 
speech  and  of  writing  and  publishing  their  sentiments;  therefore  the  free- 
dom of  the  press  ought  not  to  be  restrained." 

South  Carolina,  1778  :  "  That  the  liberty  of  the  press  be  inviolably 
preserved." 

Massachusetts,  1780:  "The  liberty  of  the  press  is  essential  to  the 
security  of  freedom  in  a  state;  and  ought  not,  therefore,  to  be  restrained 
in  this  commonwealth." 

New  Hampshire,  1784:   "  The  liberty  of  the  press  Is  essential  to  the  • 
security  of  freedom  in  a  state;  and  it  ought,  therefore,  to  be  inviolably 
preserved." 

Pinckney's  Plan  of  1787:  "The  Legislature  of  the  United  States 
shall  pass  no  law  touching  or  abridging  the  liberty  of  the  press." 

Delaware,  1792:  "The  press  shall  be  free  to  every  citizen  who 
undertakes  to  examine  the  official  conduct  of  men  acting  in  a  public 
capacity,  and  any  citizen  may  print  on  any  subject,  being  responsible  for 
the  abuse  of  that  liberty.  In  prosecutions  for  publications  Investigating 
the  proceedings  of  officers,  or  where  the  matter  published  Is  proper  for 
public  Information,  the  truth  thereof  may  be  given  In  evidence;  and  In 
all  indictments  for  libels,  the  jury  may  determine  the  facts  and  the  law, 
as  In  other  cases." 

After  the  Federal  Convention  came  together  In  1787  It  was  proposed 
to  Insert  in  the  Constitution,  "  the  liberty  of  the  press  shall  be  Inviolably 


8o  LIBERTY    OF    THE    PRESS 

Ford,  Paul  Leicester — Journal  of  Hugh  Gaine.     New  York,  1901. 

Fowle,  Daniel — Total  Eclipse  of  Liberty.      Boston,  1755. 

Franklin,  Benjamin — Autobiography.     New  York,  1849. 

Fraser,  Hugh — Privileges  of  the  Press  in  relation  to  Libel;  Law 
Quarterly  Review,  7,  158. 

Gentz,  F.  von — Reflections  on  the  Liberty  of  the  Press  in  Great  Britain. 
London,  1820  (trans.) 

Gordon,  Wm.  D.  D. — The  History  of  the  Rise,  Progress  and  Establish- 
ment of  the  Independence  of  the  United  States  of  America ;  4  vols. 
London,   1788. 

Grant,  James — History  of  the  Newspaper  Press.     London,  1840. 

Hall,  Robert — An  Apology  for  the  Freedom  of  the  Press  and  for  Gen- 
eral Liberty.     London,  1793. 

Harrison,  W.  L.  S. — Proceedings  at  the  Printers  Banquet  held  at  the 
N.  Y.  Typographical  Society,  on  the  Occasion  of  Franklin's  Birth- 
day, 1850.     New  York,  1850. 

Hening,  Wm.  Waller — Statutes  at  Large  of  Virginia;  16  vols.  New 
York,  1823. 

Howell,  T.  B. — State  Trials;  30  vols.     London,  v.d. 

Hildeburn,  Charles — Sketches  of  Printers  and  Printing  in  Colonial  New 
York.     New  York,  1895. 

Hudson,  Frederick — A  History  of  Journalism.     New  York,  1873. 

Hunt,  F.  Knight — The  Fourth  Estate;  Contributions  Towards  a  His- 
tory of  Newspapers  and  of  the  Liberty  of  the  Press;  2  vols.  Lon- 
don, 1850. 

Hutchinson,  Thomas — History  of  Massachusetts;  2  vols.     Salem,  1795. 

Jefferson,  Thomas — Notes  on  the  State  of  Virginia.      London,   1787. 

Jones,  Horatio  Gates — Andrew  Bradford,  Founder  of  the  Newspaper 
Press  in  the  Middle  States  of  America;  An  Address  delivered  at  the 
Annual  Meeting  of  the  Historical  Society  of  Pennsylvania.  Phil- 
adelphia, 1869. 

Lechford,  Thomas — Note-Book.  Am.  Antiquarian  Society;  Vol.  VII, 
1885. 

Leake,  Isaac  Q. — Memoirs  of  the  Life  and  Times  of  General  John 
Lamb.     Albany,  1850. 

Lincoln,  Wm. — History  of  Worcester,  Mass.     Worcester,    1862. 

Massachusetts — MS.  Records  of  the  Colony. 

McAdam,  David — History  of  the  Bench  and  Bar  of  New  York;  2  vols. 
New  York,   1897. 


LIBEETY  OF  THE  PEESS  81 

McMaster,  John  Bach— A  Free  Press  in  the  Middle  Colonies.  Prince- 
ton Ee  view;  Vol.  I.  (N.  S.) 

Munsell,  Joel — Annals  of  Albany ;  10  vols.    Albany,  v.  d. 

New  York — The  Colonial  Laws  of;  5  vols.    Albany,  1894. 

New  York — Votes  and  Proceedings  of  the  General  Assembly  of  the 
Colony  of.    1691-1765 ;  2  vols.    New  York,  1765. 

New  York — Votes  and  Proceedings  of  the  General  Assembly  of  the 
Colony  of.    1766-1776.    Albany,  1820  (reprint.) 

New  York — Votes  and  Proceedings  of  the  Legislative  Council, 
Albany.    New  York,  1861. 

North,  S.  N.  B. — Constitutional  Development  of  the  Colony  of  New 
York.    Mag.  Am.  Hist.  III.,  161. 

O'Callaghan — Documents  relative  to  the  Colonial  History  of  the 
State  of  New  York ;  11  vols.    Albany,  v.  d. 

Odgers— W.  Blake— The  Law  of  Libel.    Philadelphia,  1887. 

Pennsylvania —  Minutes  of  the  Provincial  Council  of;  3  vols.  Phila- 
delphia, 1852. 

Proud,  Eobert — History  of  Pennsylvania ;  2  vols.    Philadelphia,  1798. 

Eoden,  E.  F.— The  Cambridge  Press,  (1630-1692).     New  York,  1905. 

Eoss,  Peter — A  History  of  Long  Island.    New  York,  1903. 

Eutherford,  Livingston — John  Peter  Zenger.  His  Press,  His  Trial, 
and  a  Biography  of  his  Imprints  and  those  issued  by  his  "Wife 
and  Son.    Also  a  reprint  of  the  Trial.    New  York,  1904. 

Satterlee,  Herbert  L.— Political  History  of  the  Province  of  New  York. 
New  York,  1885. 

Taylor,  Hannis— The  Freedom  of  the  Press.  Argument  ex  parte 
John  L.  Eapier,  before  Supreme  Court  of  U.  S.,  n.  p.,  n.  d. 

Taylor,  Henry  Osborn— Development  of  Constitutional  Government 
in  the  American  Colonies.    Mag.  Am.  Hist.  II.,  705. 

Thomas,  Benjamin  Franklin,  Memoir  of  Isaiah  Thomas.  Boston, 
1874. 

Thomas,  Isaiah— History  of  Printing;  2  vols.    Albany,  1874. 

The  Tryal  of  John  Peter  Zenger.    London,  1738. 

Wallace,  John  William— Address  on  Wm.  Bradford.    Albany,  1863. 

Wallace,  John  William— Col.  Wm.  Bradford.    Philadelphia,  1884. 


82 


APPENDIX  1 
GENEOLOGY  OF  THE  BRADFORD  FAMILY 


WILLIAM  BRADFORD— ELIZABETH  SOWLE 


1660-1752 
1725,  The  New  York  Gazette 


d.  of  Andrew  Sowle 

printer,  of  London. 


I 

I 

I 

ANDREW 

1686-1742 

1792  The  American  Weekly 

Mercury  of  Philadelphia 


WILLIAM 


a  sailor 


WILLIAM— Rachel        TRACE Y-Jo8hua  Maddox  Wallace 


1719-1791 

1742  The  Pennsylvania 

Journal 


d.ofThos.  Budd 
of  the  Keithian  party 
in  Philadelphia 


THOMAS 

Partner  with 

his  father 


W^ILLIAM 

Attorney  General 

of  U.  S. 


I 
SCHUYLER 

died  in  East 

Indies 


83 
APPENDIX  II. 

QUOTATION  FROM  ''THE  FORUM." 

DAVID  PAUL  BROWN. 

Vol.  I.,  p.  271. 

The  "Liberty. of  the  Press"  in  America,  is  a  matter  whoso 
earlier  history,  we  think,  has  not  been  well  apprehended,  even  among 
ourselves,  in  modern  times.  Knowing,  as  we  do,  that  our  country  was, 
as  a  general  thing,  colonized  hj  those  who  left  England  in  discontent 
with  its  laws  against  a  general  liberty  on  the  subjects  of  religion  and 
politics,,  we  have  been  led  to  suppose  that  THE  PRESS  was  as  free 
in  the  early  state  of  the  colonies  as  it  has  been  in  our  own  days.  This, 
we  take.it,  is  a  mistake;  it  is,  certainly,  so  far  as  concerns  Pennsyl- 
vania.-^There  was,  in  truth,  no  liberty  of  the  press  at  all,  worth 
speaking  of,  in  this  State,  prior  to  the  year  1731 ;  and  it  seems  to  have 
been  asserted,  and  finally  established  by  the  printers  themselves, 
against  the  sharp  and  unscrupulous  action  of  the  crown  officers,  who 
exercised  in  this  colony,  at  least,  a  power  far  beyond  any  ever  exer- 
cised contemporaneously  in  England;  a  power,  indeed,  such  as  we  find 
existing  only  in  tyrannies  as  absolute  and  irresponsible  as  those  of 
Naples,  St.  Petersburg  or  Vienna.  The  history  of  this  subject  is  one 
of  growing  interest ;  it  deserves  a  special  study  and  illustration ;  and 
such,  sooner  or  later,  it  will  no  doubt  receive." 


86 

VITA. 

The  aiitlior  of  this  dissertation,  Livingston  Eowe  Schuvler,  was 
born  July  22,  1868,  in  the  City  of  New  York.  He  received  his  early 
education  in  private  and  public  schools  in  the  city,  and  in  1885  enter- 
ed the  Freshman  class  of  the  College  of  the  City  of  New  York.  Dur- 
ing the  last  two  years  of  his  undergraduate  course  he  gave  speccial 
attention  to  American  and  English  History.  He  was  graduated  in 
1889  with  the  degree  of  Bachelor  of  Arts._ 

The  same  year  the  writer  was  appointed  a  Tutor  in  the  Depart- 
ment of  IMathematics  of  the  College  of  the  City  of  New  York,  which 
position  he  held  for  one  year.  The  year  1890-1891  he  spent  as  Mas- 
ter of  the  Quarta  Form  in  Trinity  School,  New  York,  from  which  he 
resigned  to  enter  the  General  Theological  Seminary,  New  York  City. 
There  he  continued  to  give  special  attention  to  History.  In  1893  he 
received  the  degree  of  Master  of  Arts  from  the  College  of  the  City  of 
New  York  for  graduate  work  in  History  and  the  TDresentation  of  a 
dissertation.  In  1894,  on  being  graduated  from  the  General  Theo- 
logical Seminary,  he  was  recommended  by  the  Faculty  to  the 
Trustees  for  the  degree  of  Baclielor  of  Sacred  Theolog3%  which  was 
conferred  in  May,  1895. 

In  June,  1894,  Mr.  Schuyler  was  appointed  to  a  Travelling 
Scholarship  in  Ecclesiastical  History  by  the  Church  University 
Board  of  Regents,  his  major  subject  being  History,  and  his  minors. 
Philosophy  and  Sociology,  and  the  term  three  years.  The  first  year 
he  spent  in  studv  in  Historv  at  the  General  Theological  Seminary 
under  the  Eev.  Prof.  Ritchie.  The  year  1895-1896  he  spent  at  the 
University  of  Oxford,  where  he  took  courses  in  History  under  Profs. 
Bright,  Powell  and  Fletcher,  and  in  Philosophy  under  Profs.  Caird 
and  Case.  He  also  did  research  work  in  the  Bodleian  Library. 
The  next  two  years  he  s]:>ent  in  Paris,  where  for  two  years  he  con- 
tinued his  research  work  and  also  attended  lectures  at  the  University, 
returning  to  America  at  the  beginning  of  the  year  1898. 

In  1898  he  was  appointed  Tutor  in  History  in  the  College  of  the 
City  of  New  York,  and  in  1900  was  made  Instructor,  a  position  he 
now  holds. 

In  the  School  of  Philosophy  of  Columbia  University  Mr.  Schuy- 
'ler  studied  under  President  Butler  in  Philosophy  and  under  Dean 
Burgess  and  Dr.  Robinson  and  Dr.  Osgood  in  American  and  Europ- 
ean History. 

In  the  Graduate  School  of  the  New  York  University  he  took 
courses  in  Comparative  Constitutional  Government  and  American 
Constitutional  History  under  Prof.  Brown,  and  in  Comparative 
Religion  under  the  Rev.  Prof.  Ellinwood,  and  in  1904  received  the 
degree  of  Doctor  of  Phi1oso])hy. 

He  has  written  a  number  of  articles  on  historical  subjects. 


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